(As of 01/01/2020)
1 Scope of the delivery obligation
For deliveries and services from ethcon GmbH, the sales and delivery conditions for communication servers and clients or IT systems apply exclusively, unless something else has been expressly agreed in writing. Conditions of the buyer only apply if they are expressly recognized in writing by ethcon GmbH. Ethcon GmbH reserves its right of ownership and copyright to documents from ethcon GmbH such as images, presentations, drawings, etc., which are part of the order confirmation; they may not be made accessible to third parties or otherwise improperly used without the consent of ethcon GmbH; if the order is not placed, they are to be returned on request.
2 Prices, terms of payment and retention of title
2.1 Freight, packaging and travel costs are charged separately.
2.2 All payments are to be made within 7 days net to ethcon GmbH plus sales tax at the applicable rate.
Payments for designated projects are due for the ordered hardware and software as follows:
60% with order confirmation
30% with the start of deliveries (no later than 4 weeks after order confirmation)
10% with complete delivery of the hardware and software components
The service is billed monthly according to the degree of fulfillment.
The costs for services and travel expenses are to be paid immediately after receipt of the invoice.
If services are included in the offered project price as a lump sum, they will be billed with complete delivery of the hardware and software components (10% advance invoice).
2.3 If the entire scope of delivery and performance of the order cannot be completed on one date, economically independent parts of the order will be set up step by step. Ethcon GmbH can issue partial invoices for parts of the order that have been set up, taking into account the agreed prices, which are to be settled taking into account prepayments already made.
2.4 If the buyer is in arrears with an obligation to cooperate for more than 14 days (i.e. failure to fulfill his obligation to cooperate despite prior request and setting a deadline by ethcon GmbH), ethcon GmbH is entitled to reimburse the hardware and software expenses incurred up to that point as well as to calculate the service and, if necessary, deviating from section 2.2, to make it due immediately. This also applies to hardware and software components that are temporarily stored at ethcon GmbH until the occurrence of default.
2.5 The buyer can only offset claims that are due from ethcon GmbH with claims that have been recognized in writing or that have been legally established.
2.6 The delivered goods remain the property of ethcon GmbH until all claims to which it is entitled against the buyer from the respective order concerned have been met. Pledging and transfer by way of security are not permitted before full payment has been made.
2.7 We reserve the right to increase our prices appropriately if, after the conclusion of the contract, there are increases in costs, in particular due to exchange rate fluctuations. We will prove these to the costumer upon request.
3 special offers / non-binding offer
If our offer is a “non-binding offer” (special offer), the following applies: only while stocks last (subject to the possibility of delivery).
If the processing takes place via leasing, the following applies:
4.1 The leased item is delivered directly to the customer. He is obliged to examine and test the leased item immediately for defects, completeness and compliance with the procurement contract. The customer must immediately notify ethcon GmbH and the leasing partner in writing of any complaints. If the leased item has been delivered in accordance with the contract, the customer has to take over the leased item and immediately confirm this to the leasing partner in writing, specifying an identification number (e.g. serial number) (confirmation of acceptance). After receipt of the acceptance confirmation, the leasing partner will pay the price owed for the leased item to ethcon GmbH. Upon receipt by the leasing partner, the acceptance confirmation becomes an integral part of the leasing contract.
4.2 If the customer does not take over the leased item within two weeks of the availability date communicated by the leasing partner or ethcon GmbH, the customer will be given a reasonable grace period.
5 Rights to Programs
5.1 The buyer receives the right to use the programs provided with the agreed performance features for the operation of the system together with the systems, without a separate contract and without separate calculation, all other rights to the programs remain with ethcon GmbH. The buyer does not have the right to reproduce or change the programs or to make them accessible to an unauthorized third party without the prior written consent of ethcon GmbH.
5.2 With every resale of the system, only the above rights of the purchaser with regard to the programs are transferred to the respective purchaser; all other rights to the programs always remain with ethcon GmbH.
6 Setting up the system
6.1 For the setup of the communication solution, the buyer has to pay a lump-sum setup price for the setup, the initial instruction in the basic functions of the systems or terminal equipment and the connection of the communication server and client. Insofar as ethcon GmbH delivers and installs the line network including junction boxes and distributors, or checks and / or changes an existing one including the bus network components, these services will be charged separately according to the actual expenditure.
The set-up prices apply provided that all work can be carried out by ethcon GmbH without hindrances, delays or interruptions and during normal working hours (Monday to Friday 8:00 a.m. – 5:00 p.m.). Waiting times that are not caused by ethcon GmbH, as well as additional expenses due to difficulties (such as opening and closing ceiling and wall cladding or moving furniture), are also charged separately according to the actual effort.
6.2 The buyer is obliged to provide ethcon GmbH with binding user data in good time prior to delivery of the system in accordance with the agreed scope of services, otherwise the commissioning date cannot be guaranteed (unless these data have been jointly developed and described in a specially designed installation workshop). If the buyer changes these data or the scope of services at a later date, the associated additional services will be charged separately at the list prices valid for them. Changes to the scope of services and changes to user data are also billed at the list prices valid for communication servers or telecommunications systems that are in operation.
6.3 If necessary, the buyer will provide suitable and lockable storage and lounge rooms. Work of a non-low-voltage type, in particular high-voltage, chiselling, masonry, earthwork, construction and scaffolding work, including the building materials required for this, is carried out by the customer at his own expense.
6.4 In the case of ICT components that are operated via the customer’s own passive and active data network, the customer ensures the functionality of his data network for Voice over IP (VoIP) (such as QoS, VLAN, delay and jitter times, etc.). Ethcon GmbH assumes no liability for the functionality of the customer’s own data network or that of the network provider. Additional expenses or waiting times caused by functional impairments of Voice over IP (VoIP) (caused by the customer’s own data network or that of the network provider) will be charged to the buyer at the list prices valid at ethcon GmbH.
If in VoIP projects based on the network analysis, in installations in which a previous network analysis was dispensed with or if additional customer requests result in additional effort in the area of the customer’s own network, these services and any additional hardware / software solutions required are separately based on the actual effort, calculated at the list prices valid at ethcon GmbH.
6.5 Any connectors or interfaces required from external, customer-specific software solutions / applications as well as the integration into customer-specific software solutions / applications are not included in the set-up price. This also applies to the connection of a customer’s own database, for example for computer telephony integration. Such connectors, interfaces or database connections are provided by the customer according to the manufacturer’s specifications for the communication solution to be delivered. If these provisions are not available and have to be produced by ethcon GmbH, these expenses will be charged at the list prices valid at ethcon GmbH.
6.6 If the system overview contains software solutions that require additional client installations, the installation price includes the installation for up to 5 users per application. The setup of additional users is taken over by the buyer or charged according to the actual effort at the list prices valid at ethcon GmbH.
6.7 If server hardware is required for applications and this is supplied and commissioned by ethcon GmbH, the buyer is obliged to provide suitable virus software for commissioning that has been agreed with ethcon GmbH, which is automatically and regularly updated. Ethcon GmbH assumes no liability for a virus attack. If the buyer provides server hardware for applications, it must be equipped in accordance with the manufacturer’s specifications for the application software to be installed and suitable virus software incl. automatic updates (ethcon GmbH assumes no liability for a virus attack).
6.8 Should the customer want to postpone the originally planned GoLive date (according to the agreed project plan), he must announce this in writing at least 14 days in advance in order to be able to reschedule any resources that may be required. If the appointment is postponed less than 10 days before the originally planned appointment, the customer will be charged for the service expenses, travel costs (including cancellation costs) and cancellation costs * incurred up to then by the appointment cancellation.
(* If the planned engineer cannot be scheduled for another project in this case, we will charge this at the currently valid daily rate.)
7 Transfer of Risk
With the delivery of the parts belonging to the system (material, central units, apparatus, etc.) to the buyer, the risk of loss and damage is transferred to the buyer.
8 Warranty / Statute of Limitations
8.1 The limitation period for claims and rights due to defects in deliveries and / or services by ethcon GmbH – regardless of the legal reason – is one year. However, this does not apply in the cases of Section 438 Para. 1 no. 1 BGB (defects of title in immovable property), § 438 para. 1 no. 2 BGB (buildings, things for buildings), § 479 para. 1 BGB (entrepreneur’s right of recourse) or Section 634a Para. 1 No. 2 BGB (buildings or works, the success of which consists in the provision of planning or monitoring services for this). The cases excluded in the above sentence 2 are subject to a limitation period of three years. The limitation periods according to section 8 para. 1 also apply to all claims for damages against the contractor that are related to the defect – regardless of the legal basis of the claim.
However, the above limitation periods apply with the following stipulation:
1. The limitation periods generally do not apply in the event of willful intent or fraudulent concealment of a defect or if the contractor has assumed a guarantee for the quality of the delivery item.
2. The limitation periods also do not apply to claims for damages in the event of a grossly negligent breach of duty, in the event – not existing in the delivery of a defective item or the provision of a defective work performance – culpable breach of essential contractual obligations, in the cases of culpably caused injury to life Body or health or in the case of claims under the Product Liability Act. The limitation periods for claims for damages also apply to the reimbursement of wasted expenses.
The limitation period begins for all claims with the delivery, in the case of work services with the acceptance. Unless expressly stipulated otherwise, the statutory provisions on the start of the statute of limitations, the suspension of the expiry, the suspension and the restart of deadlines remain unaffected. The above regulations apply accordingly to claims for damages that are not related to a defect; for the limitation period, section 8 para. 1 sentence 1. A change in the burden of proof to the detriment of the client is not associated with the above regulations. The buyer is obliged to notify the seller of obvious defects immediately, but no later than 7 days after receipt of the goods; To meet the deadline, it is sufficient to send the notification within the deadline. Defects occurring later must be reported immediately. The defects are to be described in writing and in as much detail as possible for the buyer. If the buyer reports a defect that does not exist according to the seller’s inspection, and if the buyer was aware of the non-existence of the defect at the time of notification or if he was in error due to negligence, the buyer must compensate the seller for the damage incurred. The buyer is entitled to prove that the indicated defect does exist. Within the framework of the above provisions, the seller is particularly entitled to demand reimbursement from the buyer for the expenses incurred by the seller, e.g. for the examination of the item or the repairs requested by the buyer. Claims for defects do not exist in the case of only insignificant deviations from the agreed quality or in the case of only insignificant impairment of usability. The liability for defects does not refer to natural wear and tear of the item and not to damage based on incorrect or negligent handling, a change in the supplied programs by the buyer or third parties, unsuitable equipment or rooms or other circumstances for which ethcon GmbH is not responsible. Ethcon GmbH is entitled, if it is actually impossible or unreasonable for economic reasons to rectify the problem, to find an alternative solution at the current market value of the initial solution, max. to be installed up to the financial amount of the initial purchase price, if this leads to a suitable solution to the problem.
8.2 Special provisions for hardware and software
Ethcon GmbH and the customer agree that the explanations and descriptions contained in the manual and / or in the price list, neither for the hardware nor for the software, do not represent an assurance of certain properties. The customer will examine the hardware and software immediately after delivery and immediately notify the seller of any obvious errors in writing. Claims for defects do not exist if the hardware and software are not used in accordance with the applicable installation requirements or are not used in accordance with the applicable conditions of use. If the purchaser or a third party makes improper changes, there are no claims for defects for these or the consequences resulting therefrom. Ethcon GmbH does not guarantee that the hardware and software functions meet the requirements of the customer, that hardware and software products work together in the selection made by the customer, that they run uninterrupted and error-free, or that all software errors can be eliminated. If a defect occurs, the defect and its appearance must be described in a written notice of defects so precisely that the defect can be checked (e.g. submission of error messages) and an operating error can be excluded (e.g. details of the work steps ) is possible. If the complaint proves to be justified, the customer sets ethcon GmbH a reasonable deadline for subsequent performance. As for the rest, section 8.1 applies accordingly to warranty claims, unless otherwise stipulated in this section.
No liability is assumed for the fact that the hardware and software are suitable for the purposes of the customer and that they work together with the hardware and software available at the user. The delivery of manuals and documentation beyond the written material / program description delivered with the software and the user guidance and / or online help implemented in the software, or instruction, is only owed if this has been expressly agreed in writing between the parties. In the case of such an express agreement, requirements with regard to the content, language and scope of an expressly to be delivered manual and / or documentation are not met, and the delivery of a brief instruction is sufficient, unless the parties have agreed further specifications in writing.
9 Compensation for damages, performance of the contract
If the buyer refuses to accept the service in whole or in part without justification or if the order cannot be carried out for reasons for which the buyer is responsible, ethcon GmbH can claim compensation for the costs already incurred for the order for the removal of equipment that has already been built in the amount of 30% of the order value or the corresponding part. The customer is free to provide evidence that ethcon GmbH suffered no or only minor damage. Instead, ethcon GmbH can also assert the statutory right to fulfillment of the contract if the buyer buys, leases or otherwise uses a system or system parts from third parties instead of the system or system parts that have not been set up or expanded, or replaces the system or parts of it in another way .
10 Default, Liability
10.1 If ethcon GmbH is in default with its deliveries / services for reasons for which it is responsible, the buyer can, if he can plausibly demonstrate that he has suffered damage as a result, a default compensation of 0.5 for each completed week of the delay % up to a total of 5% of the net invoice value of that part of the delivery / service that could not be delivered / performed on time. Further compensation claims by the buyer are excluded in all cases of late delivery / service, even after a grace period set by ethcon GmbH has expired. This does not apply if liability is mandatory in cases of willful intent or gross negligence. The right of the buyer to withdraw after expiry of a reasonable grace period set by ethcon GmbH remains unaffected.
10.2 The contractor is liable in cases of intent or gross negligence on the part of the contractor or a representative or vicarious agent as well as in the event of culpable injury to life, limb or health in accordance with the statutory provisions. In cases of gross negligence, however, the contractor’s liability is limited to the foreseeable damage typical for the contract, unless another of the exceptional cases listed in p. 1 or p. 3 of this paragraph is also present. In addition, the contractor is only liable under the Product Liability Act, due to the culpable breach of essential contractual obligations or insofar as the seller fraudulently concealed the defect or assumed a guarantee for the quality of the delivery item. The claim for damages for the breach of essential contractual obligations is limited to the contract-typical, foreseeable damage, unless another of the exceptional cases listed in p. 1 or p. 3 of this paragraph is also present.
The provisions of Section 10.2 Paragraph 1 above apply to all claims for damages (in particular for damages in addition to performance and compensation instead of performance), regardless of the legal reason, in particular due to defects, the breach of obligations from the contractual relationship or from tort. They also apply to claims for reimbursement of wasted expenses. However, liability for default is determined in accordance with Section 10.1 of these terms and conditions.
A change in the burden of proof to the detriment of the client is not associated with the above regulations.
11 Written form clause
All additional agreements between the parties must be made in writing and must be confirmed in writing by ethcon GmbH in order to be effective. This also applies to changes to this written form clause.
12 Place of jurisdiction, German law
The place of jurisdiction is agreed to be the registered office of the seller, provided that the buyer is a registered trader, a legal entity under public law or a special fund under public law. The seller remains entitled to sue the buyer at any other place of jurisdiction applicable to the latter. This contract is subject to the law of the Federal Republic of Germany.