General Terms and Conditions of

ESplan GmbH

 

§1 General Conditions 1. Deliveries are made exclusively to the general following terms and conditions.
2. These general terms and conditions also apply to subsequent transactions and for repairs of supplies, even if not is pointed out again. 3. Subsidiary agreements as well as amendments and additions of the contract require the written confirmation of ESplan.

§2 Binding of Offers and conclusion of Contract, Offer documents 1. Our offers are always free and binding only for 6 weeks. A contract comes into effect only if we confirm an Order of the customer in writing. 2. Our cost estimates, drawings and other offer documents remain our property, copyright rights are only to us. 3. Improvements or changes to the services are permissible as far as they are reasonable for the customer, taking into account our interests.

§3 Prices 1.  Prices are understood, unless was agreed otherwise, unfree goods acceptance department of the customer within the Federal Republic of Germany, but excluding packaging, plus applicable VAT. Additional costs for transport to the place of installation carries the customer. Costs of freight insurance and shipping abroad are borne by the customer. 2. For deliveries under € 2000, – shipping is subject to cash on delivery. 3. If there are more than four months between order and delivery, the prices of the latest price list or notification apply, provided that a price increase is not unfair. 4. For orders below € 300, – the postage and packing costs are at least € 5, -. 5. Unpredictable changes in customs duties, import and import charges and currency parities entitle ESplan to an appropriate price adjustment.

§4 Delivery of the service, Delay, Impossibility 1. Delivery agreements must be in writing. 2. All delivery obligations are subject to timely delivery. Corresponding dispositions must be demonstrated by Esplan. 3. Delay in delivery does not occur in case of force majeure, in case of turmoil, operating disruption, strike. ESplan shall demonstrate the necessary diligence. 4. Partial deliveries are permitted. In the case of continuous delivery contracts, each partial delivery is considered an independent service. 5. In the event of the default of ESplan, the customer may withdraw from the contract after a reasonable period of grace and a threat of refusal. 6. The customer can only demand damages due to default due to non-fulfillment, as far as ESplan is concerned or gross negligence. For ordinary negligence the liability is limited to the usual damage. 7. The customer is entitled to withdraw from the contract in the case of the impossibility of the performance which ESplan is responsible for. Compensation claims arise only in the case of gross claims Negligence or intent of ESplan.

§5 Dispatch and Risk Transfer 1. In the case of dispatch, the risk of payment and performance will be transferred to the customer upon delivery of the goods to the freight forwarder, freight carrier or any other person designated for execution of the consignment. This applies also in the case of freight-free delivery. 2. At the request of the Purchaser, ESplan undertakes to take appropriate insurance at its expense.

§6 Terms of Payment 1. All deliveries are subject to a positive creditworthiness check, within 14 days from the date of the invoice net cash free payment of the ESDP paying agent. For new customers or negative credit checks, ESplan may require payment in advance, or cash on delivery. 2. Checks will only be accepted for the sake of fulfillment.
Checks will only be accepted for the sake of fulfillment and be valid only after their encashment considered as their payment 3. Part deliveries can be invoiced separately. 4. The set-off by the customer is only permitted with undisputed or legally binding counterclaims..

 

5. IIn the event of a delay in payment, without prejudice to its other rights, ESplan shall be entitled to charge interest on arrears calculated at the rate of ESplan as of the date of payment of the payment, but at least 4% above the lump sum rate. Interest is payable immediately. 6. If the customer is in arrears with a payment, ESplan can withdraw from the contract by setting a reasonable period of grace or to demand compensation for non-performance. A refusal to refuse is not necessary. 7. If the customer ‘s assets deteriorate significantly, all claims arising from the business relationship are immediately due for payment.

§7 Retention of title and Advance Cession 1. The delivered goods remain the property of ESplan until the fulfillment of all, also future claims from this contract and from the entire business connection. 2.  The customer is not entitled to secure the transfer and pledge. If third parties access the reserved goods, the customer will point out the property of ESplan and immediately inform ESplan. The customer has to counter access by third parties. 3. In the case of a delay in payment, even from future deliveries or services, or in the case of the customer’s financial loss, without prejudice to its other rights, ESplan may, after assertion of the reservation of title, accept the reservation goods upon entering the customer’s premises. 4. The assertion of the retention of title or the seizure of a delivery item by ESplan shall not be considered as a withdrawal from the contract.

§8 Complain 1.Complaints due to incomplete or incorrect delivery or complaints due to recognizable defects, which are demonstrable as a result of a circumstance before the danger transfer, must be notified in writing immediately, at the latest 14 days after the receipt of the goods. Defects which are recognizable later must be communicated immediately, but at the latest 3 months after receipt of the goods. 2. In the case of a justified complaint, payment retention is only permissible in a reasonable and reasonable relationship between the defect and the purchase price. If the trade relationship constitutes such a trade among merchants, the buyer can only withhold payments if a complaint is made which is beyond doubt. The assertion also of the legitimate complaints of defects does not interrupt or inhibit the course of the warranty period.

§9 Warranty 1. For non-insignificant defects of the services at the time of the passing of the risk, ESplan warrants only by repair or replacement of the affected parts. 2. Warranty claims are not assignable. 3. The warranty period is six months since delivery to the customer. 4. If the customer is in default of acceptance or does not fulfill his obligations to cooperate, the warranty period begins with the default of acceptance or one month after the installation has been declared by ESplan, if agreed. 5. Notification of defects must be made in writing without delay. After choosing ESplan, the complained services must be transported to their seat or kept ready for inspection at the customer’s premises. 6. The warranty is void if the delivery item is used improperly or changed without the written consent of ESplan, unless the defect proved to be at the delivery.

§10 Liability for assured properties 1. Only assured properties are valid, which was expressly agreed with an authorized representative of ESplan as such. 2. Insofar as an assurance amounts to the contractual nature of the goods, the warranty claims of the customer are limited to rectification.

§11 Other claims for damages 1.ESplan shall only be liable for claims for damages resulting from a positive breach of contract, tort, organizational breach, and fault in the conclusion of the contract if it’s or its vicarious agents are guilty of intent or gross negligence.

 

2. In the case of violation of important contractual obligations (cardinal obligations), ESplan is liable for itself and its vicarious agents without the restriction of clause 1 of this condition. 3. Compensation claims against ESplan expire in 12 months. 4. The personal liability of ESplan employees, who have been acting as performance aids from ESplan, is excluded.

§12 Software §1. Software License 1.1 Licensed software, including the following new versions, as well as parts thereof and related documentation, may be used on the central unit on which they were first installed. The software may only be copied for backup purposes, including the copyright notice of the original copy and only for use on this central unit. The customer protects the software against access by third parties. Third parties shall not be deemed to be persons who exercise their right of use on behalf of the customer. All exploitation rights of the software remain with ESplan. If the customer violates these license terms, ESplan is entitled to terminate the license after unsuccessful warning and to demand the return of the software as well as all parts and copies thereof. 1.2 With delivery of the software, the license is deemed granted. At the same time, the respective valid license fee is due. With acceptance of the delivery, the software conditions, which are regulated with a license agreement included with the delivery, are recognized as exceptions. 1.3 The software is protected by a hardware protection. This is the actual license. By theft the license is also considered a loss and is to be purchased again at the list price.

§2. Software Warranty Complementary to the provisions in §9, 10 and 11 of these General Terms and Conditions applies to software: 2.1 According to the current state of the art, software is never completely error-free according to its structure. In the case of significant defects, the instructions for circumventing the effects of the defect also constitute a sufficient improvement. 2.2 ESplan does not guarantee that the program functions meet the requirements of the customer or co-operate in the selection made by him. According to the state of the art, an interruption or error-free operation or the complete elimination of all possible errors in the context of the program service cannot be ensured.  2.3 No warranty is given for the replacement or loss of data that arose due to a software delivery. The customer is obliged to secure his data accordingly.

§15 Final Provisions 1. Rights of the customer under this contract are not transferable without the consent of ESplan. 2. Invalidity of individual provisions shall not affect the effectiveness of the remaining provisions. Ineffective provisions shall be replaced by effective provisions which are as close as possible to the intended purpose. 3. If a customer falls under the personal protection area of the Data Protection Act, he / she agrees to the processing of his / her data insofar as they are necessary for the purpose of the contract. This consent form can the customer can at any time agree withdraw.

§16 Place of Performance – Court of Jurisdiction 1. In the event of disputes, including in so far as they affect the effectiveness of this contract or of this general sales and delivery conditions, Court of Düsseldorf. 2. The legal relationship between ESplan and the purchaser shall be excluded from the rights of the FRG in the absence of any other national rights

 

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