ASTRUM IT GmbH General Terms and Conditions
Last modified: March 2019
- All contract conclusions with regard to deliveries and services of ASTRUM IT GmbH (in the following referred to as “ASTRUM IT” or “we/us”) are based on the following General Terms and Conditions (AGB). They shall be accepted by the purchaser upon order placement or contract signing, or upon acceptance of the first delivery/service at the latest, and shall apply to the entire duration of the business association. Different, additional, or contrary terms and conditions of the purchaser shall not apply, unless expressly recognized by us in writing in individual cases.
- These General Terms of and Conditions shall also apply to future contracts with the purchaser. However, we reserve the right to modify these General Terms and Conditions with effect for the future at any time.
- DThese General Terms and Conditions shall exclusively apply to enterprises as defined in Sec. 14 of the German Civil Code (BGB), insofar as the contract belongs to the operation of the enterprise, as well as to legal persons under public law and special funds under public law pursuant to Sec. 310 Para. 1 BGB.
- If a respective reference is made in the contract or in our order confirmation, complementary terms and conditions can be used in addition to these General Terms and Conditions, in particular our General Software Licensing Terms as well as General Contractual Provisions for Maintenance and/or Support of Software and Hardware Systems. Within the limits of their scope of application, such provisions shall prevail over the provisions set forth in the present General Terms and Conditions.
- Any rights beyond these General Terms and Conditions which are due to ASTRUM IT according to statutory regulations or other agreements shall remain unaffected.
quotations, Conclusion of Contract and Subject Terms of Contract
Our quotations are non-binding. A contract becomes effective with our written order confirmation only. Any confirmation of order created by us electronically which does not bear a signature and name shall be deemed to constitute written form. If we do not confirm the order in writing, the contract shall be deemed to have been concluded at the latest when the delivery or the service has been effected – in this case, the delivery note shall be considered confirmation of the order. Our written order confirmation is exclusively decisive for the type and scope of the delivery or service.
All agreements between ourselves and the purchaser relating to the implementation of the contract concluded must be set out in the contract in writing. Any oral side agreements prior to or at the time of the contract conclusion require our written consent to become effective. Any changes or amendments after conclusion of a contract shall also be confirmed by us in writing.
- Our silence with regard to quotations, orders, requests or other declarations of the purchaser does not imply approval unless this has previously been expressly agreed in writing.
- We unrestrictedly reserve all of our rights with respect to service and product descriptions, drawings, test programs, and any other documentation made available to the purchaser within the framework of our quotation or at a later point. These documents may only be made available to third parties with our prior written consent. All product descriptions and technical data contained in such documentation as well as in brochures, advertisements, and other informative and advertising materials are compiled with due care; however, they do not constitute guaranties in respect of quality or any other guarantees, unless expressly identified as such. We reserve the right to make technical changes even after contract conclusion, provided that they do not have any significant impact on the agreed functionality of the object of delivery or service, and are reasonable for the purchaser.
- We reserve the right to make technical changes to the object of delivery or service after contract conclusion, in particular through adaptation to technological change as well as product line changes of our suppliers, provided that these do not have any significant impact on the agreed functionality of the object of delivery or service, and insofar as this shall not represent unreasonable modifications for the purchaser.
- In the event that disagreements arise between the parties during the contractual relationship regarding the content of IT-related terms or symbols, quality requirements, format requirements or similar, adherence to the respective pertinent EN (European standards) valid at the time of contract conclusion shall be regarded as agreed. If an EN change takes place after the conclusion of the contract but before accomplishment, we shall be obliged, within the scope of what is reasonable, to take into consideration the requirements of the new standard.
- Unless agreed otherwise, the sale and delivery of hardware and/or software takes place independently from any other service to be provided in connection with these products by us or third parties. This applies in particular to the adjustment of standard software to the requirements of the purchaser and to the development of individual software.
prices and Terms of Payment
- Our prices are net prices in EURO. All packaging and shipping costs will be charged separately. The prices are exclusive of applicable statutory VAT.
- The prices agreed upon on the conclusion of the contract, which are based on the cost factors presently in force, will be charged. Should cost factors, particularly for materials, wages, energy, duties, freight, etc., change between the conclusion of the contract and the arranged delivery/service, we have the right to adjust prices in line with such changes, insofar as the period between the conclusion of the contract and the agreed time of delivery/service is not shorter than four (4) months.
- Work or service performance to be rendered by us shall be charged according to the amount of time required, unless a lump sum has expressly been agreed upon. The costs will be billed at our discretion every month, every three months, or upon completion of the services. At our request, the purchaser shall effect appropriate advance payments.
- The purchaser shall confirm the working hours as well as the work performance of our staff on the form submitted. The required traveling time as well as waiting periods beyond our control are considered working hours.
- Travel expenses of our staff, in particular transport and accommodation costs as well as catering expenses will be invoiced separately.
- Our invoices are due within 30 days from invoicing without deduction. The receipt of payment date shall be the day on which the amount is in our possession or has been credited to our bank account. Bills of exchange and checks count as payment only after they have been cashed. Payments by bill of exchange require prior written agreement. Bank discount and other exchange costs are chargeable to the purchaser and are subject to immediate settlement in cash. The risk of payment method shall be at the purchaser's expense.
- The purchaser is not authorized to offset payments against counterclaims unless these are not in dispute or non-appealable. The purchaser has a right of retention of payment only insofar as their counterclaim is based on the same contractual relationship as our claim for payment.
Default in Payment, Deferred Payment, Deterioration in Assets
- In the event that the purchaser is in default with their payments, we are entitled to charge statutory interest for the duration of the default. This shall not restrict the right to claim additional damages.
- Should the purchaser be in default of payment or concrete indications exist for an upcoming insolvency of the purchaser, we can discontinue further work on ongoing orders, and demand immediate payment in advance of all amounts including debts not due and including bills of exchange and deferred amounts or demand a corresponding provision of securities.
- If the financial situation of the purchaser deteriorates substantially, or a reasonable application to open insolvency or composition proceedings with regard to the purchaser's assets has been refused due to the insufficiency of assets, we shall be entitled to withdraw from the contract in whole or in part.
Delivery and Service Period
- In the absence of an express written agreement to the contrary, the indication of periods or deadlines for the performance of deliveries and services is not binding. A firmly agreed delivery or service period begins with the conclusion of the contract, however, not before the timely and proper fulfillment of the purchaser's cooperation duties, especially not before the complete provision of the documentation, approvals, or releases to be furnished by the purchaser and the receipt of the agreed down-payment, if any.
- The adherence to the agreed delivery or service period by us shall in each case depend on the timely and correct fulfillment of purchaser’s cooperation obligations. Work or services to be performed by us shall be requested at least 10 days prior to the commencement of work.
- The delivery term shall be deemed met if the delivery item has left our factory prior to the expiration of the deadline, or notice has been given that the goods are ready for dispatch. The service term shall be deemed complied with if, by the date of its expiration, the service has been rendered, or the work has been provided for acceptance by the purchaser, or, in the case of a contractually agreed trial period, the object has been provided for trial operation.
- If subsequent changes or additions have been agreed upon following the purchaser’s request, the term of delivery or service shall be extended accordingly. The same shall apply to unforeseeable obstacles which are beyond our control, such as force majeure, labor disputes, strikes, lockouts, delays in the delivery of essential raw material, materials or parts. This shall also apply if our subsuppliers/subcontractors are affected by such circumstances in a way unpredictable to us. After expiration of a reasonable period, we shall be entitled to withdraw from the contract if the fulfillment of the contract is of no further interest for us as a result of the obstacle.
delivery, dispatch, passing of risk, insurance
- Delivery shall be ex works carriage forward, forwarding costs shall be borne by the purchaser. Packaging will be charged for at cost. Unless specified otherwise in any written instruction by the purchaser, we shall determine the type of shipment. Transport insurance will be taken out only on the purchaser's express instructions and at their own expense.
- Partial deliveries and services are admissible insofar as they are reasonable.
- As regards deliveries of goods, the risk of accidental destruction and accidental deterioration shall pass to the purchaser at the latest with the dispatch of the object of delivery. If dispatch is delayed due to reasons the purchaser is responsible for, the risk is transferred at the ready-for-dispatch announcement. If collection of the goods by the purchaser has been agreed, the risk passes to the purchaser after notification of readiness for collection.
- The provisions of no. 6.3 shall also apply if assembly or installation of the object of delivery by us has been agreed upon, unless delivery, assembly or installation is performed under a works agreement, in which case the risk shall not pass before acceptance of the work. If the acceptance is delayed due to circumstances caused by the purchaser, the risk passes to the purchaser after notification of readiness for acceptance.
Acceptance of Work Performance and Claims for Defects
- If the subject of our contractual performance is a work performance, the acceptance shall take place after the agreed performance has been rendered. Unless agreed otherwise, our work performance takes place independently from any possible obligation of transfer and/or cession of hardware and/or software.
- The purchaser is obliged to accept the work performance as soon as they have been notified of its completion. The acceptance shall be confirmed and documented in an acceptance report signed by both parties.
- If no defects are notified within four (4) weeks after commissioning, automatic acceptance shall be deemed to have taken place.
- Acceptance may not be refused due to insignificant defects. We can set an adequate period for the acceptance by the purchaser; after its expiration the service will be considered accepted.
- Software — The limitation period for claims for software defects is twelve (12) months beginning on the day of acceptance. It shall take place within 30 days after delivery and commissioning. If there are any claims for defects, these shall be immediately notified to ASTRUM IT GmbH specifying the exact circumstances and their effects; this notification shall be detailed, traceable and in writing. ASTRUM IT GmbH shall then deliver their opinion as quickly as possible, as to how this defect can be corrected and to what extent supplementary performance can be provided.
- Hardware — The limitation period for claims for hardware defects is twelve (12) months from delivery. If there are any claims for defects, these shall be immediately notified to ASTRUM IT GmbH specifying the exact circumstances and their effects; this notification shall be detailed, traceable and in writing. ASTRUM IT GmbH shall then deliver their opinion as quickly as possible, as to how this defect can be corrected and to what extent supplementary performance can be provided – at our own discretion, repairing or replacing the product free of charge.
Retention of Title, Assignment of Claim
- We reserve the right of ownership for all products we delivered until all claims, even conditional and future claims, including incidental claims we have against the purchaser on the basis of our business relation, have been paid, and the bills of exchange and checks given for this purpose have been honored. With respect to current accounts, the title retained shall be regarded as security for our respective balance claim.
- The purchaser shall be obligated to treat the goods delivered with due care and to sufficiently insure them at replacement value against damage at our request for the duration of the retention of title. The purchaser shall provide evidence of such insurance cover at our request. Claims against the insurer are hereby assigned to us by the purchaser to the amount of our underlying exposures. We hereby accept the assignment. If the assignment is not permissible, the purchaser shall instruct the insurer to perform any payment solely to us. Any further claims by us remain unaffected.
- The customer shall be revocably entitled at any time to process the goods supplied or combine them with other objects in the proper course of business dealings. Such processing or combining takes place for us without any obligation on our part. In the event of processing or combining, the purchaser shall grant us co-ownership of the new item created in the ratio of the invoice value of the goods to which title has been reserved to the amount of the invoice values of all other goods used including costs of processing. The product created as a result of processing or combining shall be subject to the same conditions as the goods delivered by us under retention of title.
- The purchaser may only sell our reserved items in the course of normal business and only provided that they are not in default of payment. The purchaser shall not be entitled to dispose of the reserved goods in any other way, especially pledging or assigning as a security. In case of resale, the purchaser shall already in advance assign to us their claims against their purchasers or third parties to the amount of the respective invoice sum for the resold goods (incl. VAT) plus a security fee of 10 %. We hereby accept the assignments.
- The purchaser shall be entitled to collect the claims assigned to us under no. 8.4, unless we revoke this right, which we are permitted to do at any time. The collected amounts shall be immediately transferred to us. Upon request, the purchaser undertakes to notify the third-party debtors of the assignment to us and to furnish us with the information and documentation required for collection.
- The purchaser may not transfer our reserved goods by way of security or pledge the same to any third party, may not assign the claims resulting from the resale to any third party or make an offset, nor agree a ban on assignment with their purchasers with respect to such claims. In the event of a blanket assignment by the purchaser, the claims assigned to us are to be expressly exempted.
- We shall undertake to release the securities due to us at the request of the purchaser, insofar as their value exceeds the claims to be secured by more than 10 %. The choice of assets to be released lies with us.
- In the event of conduct contrary to contract, in particular default in payment, impending suspension of payment, unsatisfactory information as to the purchaser's solvency or financial position, if judicial executions or protests in respect of bills of exchange occur, or if an application for the institution of insolvency proceedings against the purchaser's assets has been filed, we shall be entitled to take back the goods delivered. The purchaser will be obligated to surrender the items. The purchaser shall bear all costs of return and realization of the goods.