General terms and conditions and delivery conditions
A. General terms and conditions and delivery conditions for the sale of software products and supply of services of the company Allegro Packets GmbH
These general terms and conditions (hereafter: “GTC”) regulate all details regarding the sale of software products and supply of services that are necessary and relevant for the contractual relationship of the contracting parties.
I. Subject matter of the contract and co-operation between client and Allegro
1. Contracting Parties
The contracting parties are Allegro Packets GmbH (henceforth: Allegro), Fockestraße 6, 04725 Leipzig (District Court Leipzig: HRB 30535) represented by the directors (Klaus Degner, Katrin Pflugfelder) and the client, who is not consumers according to article 13 of the German civil code (BGB), who will be referred to as “client” in the order confirmation.
2. Subject matter of the contract and conclusion of the contract
2.1 The subject matter of the contract results from the GTC, the contents of the respective order confirmation from Allegro with the corresponding documents and regarding documents.
2.2 The scope of deliveries and services, as well as its quality and its operational environment are based on the performance specifications supplied to the client upon conclusion of the contract, the specification sheet, as well as the corresponding documentation, which are provided to the client with the deliveries and services.
2.3 The delivery is carried out exclusively for the contractual use only.
2.4 The client is not entitled to claim the disclosure of the source codes or to use the source codes. The source code is no subject matter of the contract, unless expressly otherwise agreed upon in writing.
2.5 Divergent provisions from these GTC require the written form to be valid.
2.6 Terms and conditions of the client shall not become part of the contract content and shall not be accepted, even if they are not expressively rejected.
2.7 These GTC shall apply primarily, except otherwise has been agreed upon by the contracting parties.
2.8 Performance specifications and product presentations on the website of Allegro are only an invitation to clients to make a binding offer to Allegro.
2.9 The contract is concluded only after the client has received the order confirmation, at the latest after the provision of the service and/or performance by Allegro.
3. Prices and other Costs
All prices, emoluments and license fees result from the order confirmation except the statutory VAT and any other applicable taxes, customs duties, clearing costs, additional charges, surcharges, additional fees and costs for packaging and insurance.
4. Payment, Offset, Right of Retention
4.1 Unless otherwise agreed upon, the invoiced amount of Allegro is due within thirty (30) days from the date of the invoice without deduction and has to be paid by bank transfer payable into the account stated upon the invoice. The invoice shall be deemed duly received by the client after three (3) days of invoicing, unless proven otherwise by the client. After the end of the payment period, the client will be in default of payment without any further notification by Allegro.
4.2 In case of defective performance, the client has no right of retention, unless the performance is evidently defective and/or the client is entitled to refusal of acceptance. In such cases, the client is entitled to the right of retention only, if the retained amount is in a reasonable proportion to the deficiencies of the performance and the estimated costs of the supplementary performance (especially in case of remedy). The client shall not be entitled to enforce his claims and rights due to deficiencies if he has not made due payments and if the due amount (including any payments already made) is at a reasonable proportion to the value of the defective performance and/or service.
5. Type, Scope and Place of Deliveries and Services
5.1 The delivery of a product by Allegro is made “ex works/EXW and/or supply center” (INCOTERMS 2010) as an insured postal dispatch or as a download file by E-Mail. In cases of postal dispatch, the transfer of risk passes upon handover to the transport person, which applies to both, the transfer of risk, as well as to the on-time delivery in cases of agreed delivery date.
5.2 Allegro determines the mode of dispatch, the dispatch route and the freight carrier.
5.3 The supply of services and work performances (e. g. installation services, implementation services, customization services, consulting services and other types of supporting services) take place on the basis and in accordance with regulations described in detail in section B. of this GTC and the order confirmation and related documents.
6. Retention of Title
6.1 The delivery item remains property of Allegro until the fulfillment of all its claims against the client resulting from the respective business relation.
6.2 In case of sale of the delivery item or the new goods, the client assigns his claim arising out of such resale against its buyer with all ancillary rights by way of security hereby to Allegro, without be needing any further declaration. The assignment is valid including any balance claims. The assignment is valid only in the amount equal to the invoice for the delivery item from Allegro. The assigned receivables to Allegro shall be satisfied with priority.
6.3 Until revoked the client is authorized for the collection of receivables assigned to Allegro in accordance with the article 6.1 (Retention of Title). The client shall pass effected payments for the assigned receivables on to Allegro up to the amount of the secured receivables. In case of justified interests, particularly in case of default of payment, suspension of payments, initiation of insolvency proceedings, bill protest, valid indication of an over indebtedness, or threatening insolvency of the client, Allegro is entitled to revoke the collection authority of the client. Furthermore, following a prior warning and complying with a reasonable deadline, Allegro may disclose the assignment for security, utilize the assigned receivables, as well as demand that the client discloses the assignment for security to the buyer.
6.4 Following authentication of a justified interest the client shall provide Allegro with the information and documents necessary for enforcing its rights against the buyer.
6.5 During the effectiveness of the right of retention, the client is prohibited to pledge or to transfer by means of security. In case of pledges, confiscation or other disposition or interferences by third parties, the client shall inform Allegro immediately. Only resellers are authorized to resale the delivered item or new goods in their ordinary course of business, and only under the condition that the payment of the price of the delivered item is made to the client. Furthermore, the client is obliged to agree with the buyer that the buyer only after payment acquire ownership.
6.6 In case of breach of duty by the client, particularly in the event of a default in payment, Allegro is entitled to demand the surrender of the delivered item and/or new goods without setting a deadline. Allegro is entitled - if necessary after the deadline - to withdraw from the contract; the client shall be obliged to surrender the delivered item or new goods. The claim of delivered item and/or the new goods shall not be deemed as a declaration of withdrawal, unless explicitly declared so.
7. Duties and Obligations of the Client
7.1 The client shall be solely responsible for providing suitable and necessary environments for the hardware and software, as well as the necessary system requirements for the deliveries and services supplied by Allegro.
7.2 The client has to apply and respect the instructions on possible actions and usage instructions for installation and implementation of the deliveries and services. The client has to authorize skilled-trained personnel only to operate and use the deliveries and services of Allegro.
7.3 The client has to grant Allegro effective and technical access to respective systems in order to perform a default analysis.
7.4 The client hast to release Allegro from any third parties claims, caused by an illegal usage of a delivered product and related services by the client or that were caused with its approval. The client has to inform Allegro immediately in writing in case third parties intent to claim infringements, related to the performance of Allegro, against the client. The client will lead any dispute only in prior consultation with Allegro.
7.5 The client is responsible for the necessary and extensive data backup prior to granting Allegro any access to his system. The client is solely responsible for a dataloss that occurs during an operation executed by Allegro, and which was technically inevitable.
8.1 The client has to examine the product delivered by Allegro immediately after it was delivered, provided this is feasible in the orderly course of business, to inform Allegro in case of defect and the defects shall be notified to Allegro.
8.1.1 If the client fails to make such a notification, the received goods shall be considered as accepted, unless the defect was undetectable during the examination.
8.1.2 Should such a defect become apparent later, notification must be made immediately after its discovery otherwise the product shall be considered as accepted despite the defect.
8.1.3 The timely dispatch of the notification shall be sufficient to maintain the client’s rights.
8.1.4 Should Allegro have maliciously concealed the defect, it can not enforce the rules and regulations of this GTC.
8.2 In any case, Allegro is entitled to choose between the correction of the defect and new delivery. If a supplementary performance is required, the client has to submit the request to Allegro in writing. For the alternative performance, Allegro shall be given thirty (30) days. Should the delivery or the service be corrected and the correction has failed, the correction of defect shall be deemed as a failure only after the second attempt to correct the defect. Should the correction of defect fail, the client is entitled a reduction of the purchase price or, if he chooses, to withdraw from the contract. The defined cases of expandability of setting a deadline in the German civil code (hereinafter: “BGB”) shall remain unaffected. The application of articles 478 and 479 of the BGB remain unaffected.
8.3 The warranty claim includes only the latest software-version (hereinafter: “latest version”) released by Allegro. The client has to use the latest version, as thereby non conformities can be avoided or eliminated. Furthermore, the range of contractual functions is maintained and the application of the latest version does not lead to a significant disadvantage for the client.
8.4 The client shall bear any required expenses of an alternative performance, provided that the costs are increased as a result of the deliveries or services having to be rendered to a location other than the one agreed upon. The application of article 478 BGB remains unaffected. Regardless of further claims of Allegro, the client shall bear the expenses of Allegro for examination of the claimed defect and - if it was required by the client - for correcting the claimed defect that resulted from an unjustified complaint by the client.
8.5 The client shall lose his warranty claim if he alters a provided delivery and/or a provided service, or if he uses them at a system environment other than the one intended to or stated in the contract.
9.1 Allegro shall be liable in cases of intent or gross negligence on the part of Allegro or its representatives or its vicarious agents and in cases of a culpable damages to life, body or health of a person according to the applicable laws and regulations. Allegro’s liability in cases of gross negligence shall be limited to the predictable damage typical for the contract, provided that no other exceptional case is present at the same time as specified on sentence 1 and 3 of this paragraph 9.1. Furthermore, Allegro is liable only in accordance with the German Product Liability Act (Produkthaftungsgesetz), and for a grossly negligent breach of contract or culpable breach of major contractual obligations, as well as for maliciously concealing defects, or if provided a quality guarantee for the delivered product, and if the EU statutory rulings on consumer apply. However, the indemnification claim for the breach of essential contractual duties is limited to predictable damages typical for the contract, if no other exceptional case is present at the same time as specified on sentence 1 and 3 of this paragraph 9.1.
9.2 Regulations of previous paragraph 9.1 apply to all indemnification claims (particularly for an indemnification claim along with the services, as well as indemnification claims in lieu of the services) regardless of the legal ground, particularly due to defects, breach of contractual obligations, or tort. The regulations apply for the claim of reimbursement for the fruitless expenses as well.
9.3 The aforementioned regulations does not ament the burden of proof to the disadvantage to the client.
II. Confidentiality and Final Provisions
10. Confidentiality and Data Protection
10.1 The contracting parties are obliged to maintain in confidence all information relating to the respective contract, as well as relating to its execution. Furthermore, the contracting parties are not allowed to forward any such information to third parties, and to utilize it only for the urposes described in the respective contract. The term “information” shall be generally interpreted in a brought sense and includes in this context any material such as written documents, papers, records, memos, documents, data and so forth.
10.2 The submitted information or parts of it may be rendered to those employees or authorized representatives (hereinafter: “representatives”) only that are part of the respective field of action or that have been lectured about the confidentiality of the information. The contractual parties declare expressively to be liable for any culpable breach of their representatives.
10.3 The confidentiality obligations do not apply to information that is evident/obvious, or that was prior known to the party or that was provided to the party lawfully by a third party, or the party has developed itself without a breach of its confidentiality obligations. The burden of proof rests on the party that invokes thisregulation.
10.4 The obligation of secrecy and confidentiality shall continue for another three (3) years after the termination of the respective contract.
11. Final Provisions
11.1 This contract shall be governed by the laws of the Federal Republic of Germany (excluding the Convention on Contracts for the International Sale of Goods).
11.2 All disputes arising from the contractual relationship shall be filed to the court that is of Allegro. Allegro shall also be entitled to file suit to the court responsible for main office of the client.
11.3 Alterations and Additions to these GTC must be in writing and must be expressively marked as such. Orally negotiated subsidiary agreements are not made
11.4 The client may only assign the claims relating to this contract with the consent of Allegro.
B. Special Stipulations
I. Rights of use License Rights
1. Allegro grants the client a nonexclusive, unlimited right of use for the delivered software product on the condition precedent that full payment of the respective billing amount is made.
2. The client is not permitted to change, to make upgrades or to do any other alterations upon the software product, unless authorized by Allegro in writing.
II. Services and work performances of Allegro; Support and hardware guarantee
1. Contents, Scope and Compensation
1.1 The content, the scope and the compensation of services, works and work performances result from the respective written agreement with the client. The description of the performance and services in cases of contractual work services, particularly for adjustment programming, customization and the like, shall be, in accordance with the client and Allegro written down and recorded in a specification sheet or in a similar overview (hereinafter: “specification of services”) regarding the acceptance of the services and performances of Allegro - depending on the contractual work services - before and/or after Allegro has provided the services and performances.
1.2 The duration of support and hardware guarantee shall have a term of 12 months and thereafter shall be automatically renewed in each case for a further period of 12 months, if the client renews the maintenance agreement for the subsequent year.
1.3 Should the Licensor change the distributor, from whom the Licensor hat bought the Licensed Product, this change does not mean any alteration for this agreement. The duration of this agreement will remain the same.
2. Duty of Cooperate of the client
The duty of the client to cooperate, as described in section A. I no. 7 apply generally. In addition, following special regulations apply:
2.1 The client hast to ensure, that all necessary service participations are made in due time and within the necessary scope for Allegro.
2.2. Data medium supplied by the client, shall be functioning perfectly. If that is not the case, the client shall bear any damage to Allegro that arises due to the use of the data medium and indemnifies Allegro from all claims of third parties.
2.3 Should the client not carry out these duties, or not to the full extent or belated, Allegro is not liable for thereby any delays and/or damages or consequential damages. Allegro is entitled to postpone the agreed deadlines in order to compensate the delays caused by the client’s failure to carry out or not fully carrying out his obligation to cooperate.
2.4 Allegro may invoice all additional expenses that are due client`s failure to perform its cooperation duties - regardless of any further statutory rights - on the usual terms.
3. Acceptance of Work Performances
3.1 The client shall accept the perfomance, after Allegro has declared the fulfillment at the agreed deadline. The acceptance will be done under a functional test of the performance in accordance with agreed parameters defined in the specification of services and/or contract.
3.2 The contracting parties shall record the result of the acceptance by generating and signing a protocol.
3.3 Should the client not execute the acceptance immediately, Allegro may set a deadline one (1) week to the client to accept. Should the client not submit a notification of a defect that prevent an acceptance, before the deadline, the acceptance shall be deemed executed automatically. The acceptance shall also be deemed effective, if the client uses the deliveries and services in a productive manner, i. e. not merely for the purpose of tests, unless a test run-underproduction-conditions has been explicitly agreed upon as part of the acceptance procedure.
4. Contact Person for Allegro
The client shall appoint a contact person and person responsible for Allegro, who shall be capable of providing necessary information, who is allowed to provide information on short notice and who is allowed making decisions or have a decision taken.
III. Software-Service and Hardware Guarantee
1. Performance object and Performance scope
1.1 The software support and service cover solely products delivered by Allegro.
1.2 The Allegro assumes guarantee for the hardware during for one (1) year after purchase and during the contractual period of the maintenance and support agreement.
1.3 In cases of Guarantee, Allegro will repair and fix the defect at the hardware. If the defect is not repairable, the Licensor will replace the hardware with an equivalent or higher quality hardware.
1.4 The client shall receive updates for the software to be downloaded by E-Mail within one year after delivery of the product.
1.5 Allegro is responsible for the removal of defects of the delivered product. The product shall perform in accordance with the services agreed upon in the service specification.
1.6 If it is agreed upon in the contract, Allegro transmits particular new versions of the software to the client in order to keep the software up to date and to avoid malfunctions.
1.7 The following points are not enclosed in the scope of performance and shall be ordered separately on the basis of a respective offer:
1.7.1 Services for products delivered by Allegro that are not used in accordance with application conditions specified by Allegro.
1.7.2 Services that are either necessary due to inobservance of the operating manual, due to other forms of faulty operation, or due to negligent or willful damage and/or alteration of the software or the respective data media.
1.7.3 Providing updates of essential functional upgrades and necessary alterations due to statutory provisions, achievable only by partial or complete reprogramming of the respective software.
1.7.4 n this case, and after obtaining the client’s approval, Allegro may claim an additional and appropriate payment. Should the client not render an approval in writing, Allegro may cancel the execution of the service in this context.
1.8 Allegro berät den Kunden im Zusammenhang mit den technischen Einsatzvoraussetzungen und -bedingungen der Pflegesoftware sowie einzelnen funktionalen Aspekten. Diese Leistungen wird Allegro zu den üblichen Geschäftszeiten von Allegro erbringen. Allegro kann auch zur Beantwortung von Anfragen auf die dem Kunden vorliegende Dokumentation für die Software verweisen. Weitergehende Leistungen, etwa andere Ansprechzeiten und -fristen und insbesondere Rufbereitschaften oder Einsätze von Allegro vor Ort beim Kunden, sind vorab schriftlich zu vereinbaren.
1.9 Der Software-Service umfasst nicht die Übernahme eventueller kundenspezifischer Anpassungen oder Individualprogrammierungen, soweit dies vertraglich vorher nicht vereinbart wurde. Der Kunde kann für diesbezügliche Arbeiten gesonderte, entsprechende Aufträge an Allegro erteilen.
2. Service charges
The service charges shall be invoiced in accordance with the respective contract.
3. Duration of the Software Service
The duration of the software service shall be in accordance with the respective contract.