Terms and conditions

General conditions of sale of

EMSware GmbH
Mühlheimer Straße 15
90451 Nuremberg

Hereinafter referred to as the “seller”

§ 1 General – scope of application

(1) These general conditions of sale are  only to be applied; contrary or deviating terms and conditions of these terms and conditions of the buyer shall not apply, unless agreed between the parties. These GTCs shall also apply even if the supplier undertakes the delivery or service without reservation in knowledge of conflicting or deviating conditions of the customer.

(2) These conditions of sale apply only to entrepreneurs in the sense of § 310 Abs. 1 BGB.

§ 2 Offer – offer documents

(1) The offers of the seller are non-binding and subject to confirmation, unless anything else is expressly communicated.

(2) An order of the buyer may be accepted by the seller within 2 weeks. The contract is concluded in writing.

(3) Illustrations, drawings, calculations and other documents are only binding if this is expressly declared. The seller reserves all ownership and intellectual property rights to it. This also applies to such written documents that are known and/or interpreted as “confidential”. Before passing on to the third part, the buyer requires the written agreement by the seller.

(4) The buyer is entitled to use with the offered software Pro Studio ID maximally 8 EMS modules. There is no claim of the buyer to go beyond this maximum’s number.

§ 3 Prices – Terms of Payment

(1) Unless the order confirmation states otherwise, our prices are “ex shipping point”, excluding packaging, freight, postage, insurance and other shipping costs; these are charged separately.

(2) VAT is not included in our prices; it shall be shown separately at the statutory rate on the invoice in the day of invoicing.

(3) Deduction of a discount requires a specific written agreement.

(4) Unless the order confirmation states otherwise, the purchase price is payable net (without deduction) within 4 days from the invoice date. The laws for late payment shall apply.

(5) The buyer has set-off rights only if his counterclaims are legally established, undisputed or acknowledged by the seller. In addition, he is only entitled to exercising retention rights if his counterclaim arises from the same contractual relationship.

(6) The seller reserves the right to disable the software in case of the payment is not provided.  E.G. By blocking the software. In addition the buyer is demanded to proceed to the payment within the set time limit, otherwise the software will be blocked within 30 days.

§ 4 Delivery time

(1) The period of delivery determined by us shall only commence after all technical questions have been resolved.

(2) The adherence to the delivery duties requires the timely and proper fulfilment of the obligations of the buyer. The right to object to the unfulfilled contract remains reserved.

(3) If the buyer delays in picking up the delivery or violates any terms, the seller is entitled to demand compensation for the resulting damages, including possible additional expenses. The right to make further claims is reserved.

(4) If the requirements of Para. (3) apply, the risk of accidental loss or accidental deterioration of the goods passes to the buyer at the time when there is a debtor’s delay or default of acceptance.

(5) The seller shall be liable also under the statutory provisions, provided that the delivery delay is based on the seller to intentional or grossly negligent breach of contract. Should the delivery delay be founded on an intentional or grossly negligent contractual violation by our part, our liability for compensation is limited to the foreseeable typically occurring damage.

(6) The Supplier shall also be liable under the statutory provisions, insofar as the delay in delivery is due to his culpable violation of a fundamental contractual obligation, in this case however, liability for damages is limited to foreseeable, typically occurring damage.

(7) EMSware is not responsible for delays due to force majeure and events beyond its control nor for situations which make performance significantly more difficult or impossible for more than a short delay (in particular, strikes, lockouts, official orders, etc., with providers or their suppliers). Any such delay shall entitle the seller to an according extension to the timeframe in which the service should be provided plus a reasonable grace period; or alternatively to withdraw completely or partially from the contract on the grounds of said unfulfilled matters.

(8) If the delay lasts longer than three months, the buyer is entitled to withdraw from the unfulfilled portions of the contract. In case the delivery time is extended or the seller is released from his obligation, the buyer may have no right to claim for damages. The seller may rely on the mentioned circumstances only if he has immediately notified the buyer.

(9) If the seller is responsible for the non-fulfillment of the agreed deadlines and dates, the customer is entitled to a compensation in the value of 0,5% for each week of the delay, but this can reach no more than 5% of the invoice value. Any further claims are excluded unless the delay is due to intent or gross negligence.

§ 5 Transfer of risk

(1) Unless otherwise stated in the order confirmation, delivery is ex works.

(2) Upon buyer’s wishes, the delivery can be covered by transport insurance; costs to be paid by the buyer.

§ 6 Liability for defects

(1) Damage claims by the buyer based on defects shall only exist if the buyer has properly met his duties to examine and make complaints immediately at the receipt of the package, in accordance with § 377 HGB.

(2) If there is a defect in the item purchased, the buyer is entitled to choose supplementary performance in the form of repair or supply a new defect-free item. In case of repair or replacement delivery, the buyer is obliged to bear all costs required to remedy the defect, in particular transport, travel, labor and material costs, provided these are not increased by the fact that the goods have been transported to a place other than the place of fulfilment.

(3) If the supplementary performance should fail, the customer can choose either withdrawal or reduction at his discretion.

(4) Under statutory provision, the seller is liable, if the subscriber makes a claim for damages based on intent or gross negligence, including intent or gross negligence of the representatives or agents of the provider. Our liability is limited to the foreseeable typical damages for this sort of transaction, unless we are intentionally in breach of contract.

(5) The seller shall also be liable under the statutory provisions, insofar as the delay in delivery is due to his culpable violation of a fundamental contractual obligation, in this case however, liability for damages is limited to foreseeable, typically occurring damage.

(6) As far as the buyer is entitled to a claim for damages instead of performance due to a negligent breach of duty, the liability of the seller is limited to compensation for the foreseeable, typically occurring damage.

(7) Liability for culpable injury to life, body or health remains unaffected; this also applies for liability according to the Product Liability Act.

(8) Unless stipulated otherwise above, liability is excluded.

(9) The limitation period for warranty claims is 12 months from transfer.

(10) If a defect is caused by improper use of the delivered goods, which was not intended for the respective purpose (example: customer’s suit is used in the studio for mass trainings), a deficiency compensation with retroactive effect from the transfer of risk does not apply. The warranty is waived for the respective product. Unless otherwise agreed in writing.

§ 7 Total liability

(1) Any further liability for damages as provided in § 6, is – regardless of the legal nature of the asserted claim – excluded. This is in particular valid for indemnity claims due to faults on the occasion of the contract conclusion, due to other violations of duty, or due to tortuous claims for replacement of damage in accordance with § 823 of the German Civil Code (BGB).

(2) The limitation in accordance with sub-section (1) does also apply if in lieu of a claim for damages the customer demands the reimbursement of useless expenditures.

(3) Insofar as the seller’s liability for damages is excluded or limited and this also applies with regard to the personal liability for damages of the seller’s employees, workers, staff, representatives and vicarious agents.

§ 8 Retention of title

(1) Title to the object of sale shall remain reserved until receipt of all payments arising from the supply contract. In the event of breach of contract on the part of the purchaser, in particular default in payment, the seller is entitled to take back the purchased item. We are entitled to take back the object of sale, which shall constitute withdrawal from the contract. After the return of the goods, the seller shall be entitled to dispose of the them; the earnings from the disposal – minus the reasonable costs – are to the deducted from the buyer’s liabilities.

(2) The customer is hereby contractually bound to treat the object of sale with due and diligent care. In particular, he is contractually bound to insure it sufficiently against fire, water damages and theft at its replacement value at his own expense. If maintenance and inspection work has to be done, customers shall do the same in a timely manner and at their own expense.

(3) In the event of seizures or other interventions by third parties, the buyer must inform the seller immediately in writing so that legal action can be brought in accordance with § 771 ZPO (Code of Civil Procedure). As far as the third party is not in the position to refund the legal and extra-judicial costs of a legal action in accordance with § 771 ZPO, the buyer shall be legally responsible for the deficiency suffered to the seller.

(4) The buyer also assigns to the seller the claims to secure the seller’s claims against the buyer, which arise against a third party as a result of the combination of the object of sale with real estate.

(5) The seller undertakes to release the securities to which he is entitled at the request of the buyer to the extent that the realizable value of the securities of the seller exceeds the claims to be secured by more than 10%; the selection of the securities to be released is incumbent on the seller.

(6) Should the purchaser be in default of more than two consecutive installments (in case of payment in installments) or with an invoice, the seller is entitled to technically block the software license and render it useless until the compensation. In addition, the seller is entitled to terminate the purchase agreement. A compensation for already paid services of the buyer does not take place. Even if damage is caused by the causality of non-payment and the related lock.

§ 9 Jurisdiction – place of performance

(1) If the Buyer is a merchant, the place of jurisdiction is the seller’s place of business; however, the seller is entitled to sue the buyer at the buyer’s place of jurisdiction.

(2) The law of the Federal Republic of Germany applies; the application of UN purchasing law is excluded.

(3) Agreements in the sales contract have priority in case of contradictions.