GENERAL TERMS OF BUSINESS OF PROSALE
APE software GmbH, 08427 Fraureuth, Germany
GENERAL TERMS OF BUSINESS OF APE software GmbH
§ 1 General
1. These General Terms of Business apply to contractual relations and legal relationships between APE software GmbH – hereinafter also referred to as APE – and third parties, unless the contractual parties agree, otherwise in writing; the respective current version can be found at www.prosale-team.de. Provisions of the customer or other third parties which are contradictory to or at variance with these General Terms of Business shall apply only to the extent that APE has explicitly agreed to them in writing. These General Terms of Business also apply if APE is aware of contradictory or differing provisions of the customer or third parties but nevertheless unconditionally carries out its business obligations. Such conduct does not constitute tacit agreement by APE regarding the validity of the contradictory or differing provisions advanced by third parties.
2. These General Terms of Business also apply to all future business transactions with customers and/or third parties.
§ 2 Offers, right of withdrawal, cancellation
1. Offers by APE are not binding with regard to the date or time of delivery or performance, unless this obligation is explicitly given in writing as part of the offer, or the obligation of setting a price or other aspects is explicitly cited on the electronic ordering page.
2. A contractual relationship first comes into existence after a written or electronic confirmation of order has been sent off, and through the contents reflected therein. Furthermore, offers by APE are without obligation. APE reserves the right to make technical and other changes to a reasonable extent.
3. For a customer who is a consumer within the meaning of § 13 of the German Civil Code (BGB), the following applies:
The consumer (customer) shall be entitled – to the extent that the contract based on these conditions was concluded solely through means of telecommunications – to a right of withdrawal. The consumer will be instructed about the conditions of the right of withdrawal, its extent and the withdrawal period during the ordering transaction separately. The right of withdrawal for contracts concluded under these General Terms of Business does not apply in the case of goods which have been finished according to customer specifications or unmistakeably adapted to personal requirements, or which, due to their particular characteristics, are inappropriate for return delivery. Audio or video recordings or software are also excluded if the seal on the data carrier has been broken by the customer. The customer (consumer) is, when exercising the right of withdrawal, required to return the goods if the article can be sent as a parcel. In this case, he shall bear the costs of return delivery for orders up to an amount of 40 €, unless the delivered software does not correspond to that which was ordered.
4. If APE is unable to perform the agreed-upon services within the time period, due to reasons outside the responsibility of either of the contracting parties (e.g. acts of God, strikes and other obstacles to performance of the service which were not foreseeable and for which APE was not responsible, and which cannot be overcome at an economically reasonable cost), and if this performance also cannot be performed within the limits of a reasonable extension of the time period, both parties shall be entitled to cancel the contract without compliance with a deadline. In such cases the customer shall retain the right to the services performed in part up to the moment at which the cancellation enters into force; APE retains the right to proportionate compensation. All statements in this connection must be in writing in order to be valid.
5. The threat to terminate the further exchange of services for some other reason must always be accompanied by a statement of the reasons and the imposition of a time period within which to remedy the problem (as a rule, at least two weeks) and may be issued only two weeks after the expiration of the time period. In cases falling under § 323(2) German Civil Code (BGB), a time delay may be waived. The party which is principally responsible for the nuisance shall not be entitled to demand a reversal of the transaction. All statements in this connection must be in writing to be valid.
§ 3 Object of the contract, scope of use of the software
If the object of the contract is the delivery of APE software products (software), the scope of use of the software and the rights and obligations resulting there from are based on the rights of use granted in the license certificate, as well as the terms laid down in any separate licensing agreement and/or in particular, the licensing terms of APE (EULAs) for the software.
§ 4 Prices, payment, off-set
1. Unless the order confirmation or explicitly binding information on the ordering page indicates otherwise, APE prices given are for delivery ex works. If the customer is a consumer within the meaning of § 13 BGB, the customer will be charged VAT in addition, which shall be itemised accordingly. Delivery charges and will be billed and displayed separately. Order prices concern solely APE software products, and in particular the prices do not include installation costs, training measures, accessories or other additional services, unless this has been otherwise agreed upon in writing by the parties.
2. Upon receipt of the delivery, the customer must immediately pay the purchase price at the full amount, to be paid within 14 days at the latest. In the event that the customer has not settled the outstanding sum within this time period, and is thus in arrears, APE shall be entitled to demand interest on arrears of up to 5% above the respective base interest rate of the European Central Bank in accordance with § 247 German Civil Code (BGB). A customer that is a business customer within the meaning of § 14 German Civil Code (BGB), is required to pay interest on arrears of 8% above the respective base interest rate of the European Central Bank in accordance with § 247 German Civil Code (BGB). If PROSale can demonstrate that even greater damages ensued from the delay in payment, APE has the right to press these claims. The customer has the right to prove to APE that the delay in payment did not result in any, or in significantly smaller, damages to APE. The customer is equally in default of payment if he does not settle the bill within 30 days of the due date and of receipt of the invoice at the latest.
3. In the event that the customer is in default of payment for the purchase price, or a petition of bankruptcy has been filed in respect of the customer’s assets, APE shall be entitled to withhold all of its services and to exercise its right to reservation of ownership under § 6.
4. A client shall be entitled to offset if his counterclaim has been legally established or acknowledged by APE and/or has not been challenged in writing by APE after a statement of position has been requested. The customer shall only be entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
§ 5 Delivery, insurance, software download, default in acceptance
1. Compliance with agreed-upon delivery dates and/or undertakings is dependent upon the customer’s timely and orderly fulfilment of the undertakings.
2. If the parties subsequently agree on further services which will affect the agreed-upon delivery deadline, the deadline (time period) shall be extended by an appropriate degree. Reminders and imposed customer deadlines must be in writing in order to be valid. An extension of less than two weeks is only appropriate in the event of cases requiring extreme urgency and which are not the responsibility of the customer.
3. Services may be rendered by APE in part, to the extent that the delivered parts are of genuine use to the customer in isolation from each other.
4. If the customer so desires, APE will insure the delivery with transport insurance; the resulting costs shall be borne by the customer.
5. In the event that the software is transmitted via the Internet, i.e. in particular by e-mail or by internet download, the risk of loss and/or alteration of data is transferred to the customer after the data have been received once completely.
6. If the customer is in default of acceptance or if he violates other duties to cooperate, APE shall be entitled to demand compensation for resulting damages, including any possible extra expenditure. In this case, the danger of an incidental loss or an incidental deterioration of the object of the contract is transferred to the customer at the moment at which he is in default of acceptance.
§ 6 Right to reservation of ownership
1. APE reserves the right to ownership of the object of the contract up until such time as all payments due as a result of the contract have been received. APE will release this security upon request, at its discretion, insofar as its value exceeds the claims which are due to APE from the customer – regardless of the legal basis – on a sustained basis by more than 20 %. In the event of conduct in violation of the contract on the part of the customer, in particular default of payment, APE shall be entitled to take back the object of the contract, as well as to withhold those parts of the object of the contract which have not yet been delivered. The taking-back of the object of the contract on the part of APE in no way implies a withdrawal from the contract unless APE explicitly declares this in writing. The attachment of the object of the contract on the part of APE always implies a withdrawal from the contract. After taking back the object of the contract APE shall be entitled to reuse it. The realisation proceeds are to be credited against the customer’s liabilities – minus the actual realisation costs.
2. The customer shall only be entitled to resell software which is still owned by APE in the normal course of business with the written permission of APE. However, he thereby assigns in advance to APE all amounts due to him from his purchaser or third parties as a result of the resale, which shall be deducted from the outstanding sum (including VAT), and, what is more, regardless of whether the object of the contract has been resold without or after reworking. The customer shall be entitled to collect this claim even after assignment has taken effect. The power of APE to recover its claim itself shall remain unaffected by this; APE undertakes, however, not to recover the claim as long as the customer fulfils his payment obligations out of the revenues thus obtained and in particular, is not in default of payments, has not submitted a petition for bankruptcy proceedings, and nor have payments been suspended. If this, however, is the case, APE shall be entitled to demand that the customer assign the claims to APE and inform its debtor, provide all information necessary for the recovery of the claim, release the relevant documentation and inform the debtor (third party) of the assignment.
3. In the event of attachments or other interventions by third parties, the customer is obliged to inform these of APE's ownership rights and to immediately inform APE, so that APE can file a suit in accordance with § 771 German Code of Civil Procedure (ZPO). Should the third party not be in a position to refund the court and out-of-court costs incurred by PROSale as a result of a successful suit in accordance with § 771 ZPO, the customer shall be held liable for the losses incurred by APE.
4. If the object of the contract has been inextricably combined with other objects which are not the property of APE, APE thus acquires joint property rights in the newly-created object in proportion to the value of the object of the contract in relation to the other combined objects at the time at which the items were combined. If the combination is effected in such a way that the object of the customer may be deemed the main object, it may be considered as having been agreed that the customer has transferred proportional joint property rights to APE. The customer thus retains sole property rights hereby created or joint ownership with APE.
§ 7 Inspection obligations and duty to give notice of defects
1. The customer is obliged to examine the delivered goods, especially hardware and software, for obvious defects which would be immediately obvious to the average user. APE must be given notice in writing of obvious defects, in particular the absence of data-carriers or handbooks, as well as significant, easily visible damage to the data-carrier within a period of two weeks after delivery. Business representatives must give immediate notice of such defects in writing.
2. Customers who are not consumer within the meaning of § 13 German Civil Code (BGB) must give APE written notice of defects which are not immediately obvious within two weeks after of having come to their attention.
3. The defects, in particular the symptoms which appear, must be precisely described.
4. A violation of the inspection obligations and duty to give notice of defects has as consequence for customers that the good or software shall be considered as accepted, despite the defect.
§ 8 Warranty
1. Delivered goods possesses the agreed-upon characteristics, is suitable for the applications assumed by the contract and which are otherwise standard, and has usual quality of goods of this type. Not every flaw which is connected with the goods is a defect which implies warranty rights. An impairment in the hardware’s and software’s functioning which results from hardware defects, environmental conditions, improper operation and the like, is not a defect. An insignificant deterioration in quality will not be taken into account. APE guarantees that no rights of third parties are violated through the use of the software by the customer in accordance with the provisions of the contract.
2. Customers who are consumers within the meaning of § 13 German Civil Code (BGB) have in respect to defects of the purchased good the rights set out in the German Civil Code (BGB). In case that a consumer is entitled to claim damages hereafter, § 9 applies accordingly.
3. In all other cases of liability for defects the following terms apply:
a) APE may first attempt to remedy any material defects. APE may choose to remedy the defect by eliminating it, i.e. also by demonstrating possibilities by means of which the effects of the defect can be avoided, or through delivery of a goodwhich does not contain the defect. For Programmes this can be: an equivalent new program version or the equivalent previous program version which had not contained the faults is to be accepted by the customer, when this is reasonable. In the case of defects in title, APE shall give the assurance that it will provide the customer with legally unchallengeable option to use either the software or equivalent software, at its option.
b) The customer shall support APE in the analysis of faults and removal of defects by specifically describing problems which occur, providing APE with complete information and granting it the necessary time and opportunities to remove the defect. APE may also remove the defect on-site or at its place of business, at its discretion. The performance of APE may also take the form of remote maintenance. The customer must ensure the necessary technical prerequisites at his own expense and, after due prior notification, provide APE with access to his computer equipment.
c) APE may levy additional charges, when the good is modified, employed outside the environment provided for or incorrectly operated. It may demand compensation if no defect is found or if it is incorrectly/insufficiently informed of a fault. The burden of proof lies with the customer in accordance with § 254 German Civil Code (BGB).
d) If APE ultimately refuses to remedy the defect, if it ultimately is unsuccessful or if this is unreasonable for the customer, he may withdraw in writing from the contract or correspondingly curtail the payment and in accordance with § 9 demand damages or reimbursement of expenses.
e) Insofar as the above has not been otherwise agreed, further liability on the part of APE within the meaning of liability for defects is excluded. In particular, liability for defects does not apply if and to the extent that the good is improperly used by the customer or used in a defective or incompatible hardware or software environment. The same applies in the event that the customer undertakes unauthorised modifications of the good.
f) The statute of limitation for claims for defects is 1 year as of the statutory commencement of the limitation period.
§ 9 Liability
The following limitations of liability apply in case of claims for damages of the customer arising from liability for defects or from any other reasons:
1. APE is liable for intent and gross negligence in accordance with the statutory provisions. The same applies to injury of life, body or health as well as to claims arising from warranties or from the German Product Liability Act (Produkthaftungsgesetz, ProdHaftG).
2. Moreover, APE is only liable for culpably infringing contractual obligations the fulfilment of which renders a correct execution of the contract possible, and the customer can always trust on said material obligations being observed (cardinal obligation). This includes, in particular, the obligation to fulfil a performance free from defects. In this case APE’s liability is limited to the loss or damage foreseeable upon conclusion of the contract.
3. A further liability of APE is excluded.
4. Should the liability for damages on the part of APE be excluded or reduced, this shall also apply with regard to personal liability for compensation for damages on the part of its employees, representatives and persons employed in auxiliary tasks.
5. The right to contest the charge of contributory negligence remains open to APE. It is pointed out to the customer that, within the framework of his obligation to exercise diligence, before using the software for the first time, he must test whether the installation of the software might lead to particular interference with pre-installed software, and that he must further ensure back-up of his data before the first installation as well as during the course of operations and, in the case of a suspected fault in the software, that he implements all additional reasonable measures required for security.
6. The statute of limitation for claims of the client who is not a consumer is 1 year as of the statutory commencement of the limitation period.
§ 10 Third party rights
The customer shall immediately inform APE in writing, in the event that a third party claims industrial property rights (e.g. copyright or patent rights) against him. The customer shall authorise APE with the sole right to undertake legal action against such third parties. If APE makes use of this authorisation, the customer shall not be entitled to decide himself to acknowledge the claims of third parties without the agreement of APE. APE shall contest claims by third parties at its own expense and release the customer from the payment of all costs connected with contesting these claims, insofar as these are not occasioned by conduct by the customer in violation of his obligations (e.g. the use of programs in violation of the contract).
§ 11 Data protection
The customer consents to the collection, processing and use of personal data as necessary for the conclusion of the contract and the fulfilment of the contractual and non-contractual obligations of APE. The customer retains the right to withdraw this consent at any time, with effect for the future. APE wishes to point out that it makes use of third parties to meet its contractual and non-contractual obligations, to whom the collected data may be transmitted in order that they may fulfil these obligations. Examples of such third parties may include resellers/authorised dealers, suppliers, credit card firms as well as marketing service providers. Furthermore, the customer also declares his consent to the use of personal data for purposes exclusively internal to the firm, e.g. statistical evaluation, and for marketing and sales promotion as well as that of customer retention.
§ 12 Applicable law, place of performance, legal venue, other
1. The laws of the Federal Republic of Germany shall exclusively apply. The application of the Convention of the United Nations of 11.4.1980 on Contracts International Sale of Goods is hereby excluded.
2. Place of performance is Fraureuth, Germany. Should the customer represent a business or special assets under public law, the agreed legal venue is the seat of APE in Zwickau Germany. This also applies if the customer does not have a general place of jurisdiction in Germany or if his place of residence or usual abode is unknown at the time the proceedings are brought forth.
3. The rights and obligations resulting from an agreement reached by the parties on the basis of these provisions cannot be transferred to a third party without the prior written consent of APE.
4. Modifications and supplementary agreements must be in writing. This shall also apply to modification of this clause on written form.
5. Should one or several provisions in this agreement wholly or partly become invalid, the validity of the remaining provisions shall not thereby be affected. If an invalid provision concerns a current contractual relationship, the parties shall agree upon a valid provision to replace the invalid provision which comes the closest to the desired business results and the purpose of the contract.
6. Contract language is German. These General Terms of Business are available in German language at any time. Other language versions are only for information and translation purposes. In case of conflicts in interpretation or wording between different language versions of these General Terms of Business the German version shall always be the overriding and binding version.
Last edit: 13.08.2019