GENERAL TERMS AND CONDITIONS
General Terms and Conditions of VERTICAS GmbH and Verticas Service GmbH
Schöne Aussicht 59, 65193 Wiesbaden, As of January 1, 2014
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1. Scope
These General Terms and Conditions apply to all contracts concluded between VERTICAS GmbH (hereinafter "VERTICAS") and the customer, as well as to all offers, deliveries, and services, unless otherwise expressly agreed in writing between the parties. Any terms or conditions modifying the contract from the customer are objected to.
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2. Conclusion of Contract
2.1 The order placed by the customer, including via the internet or fax, is binding. A contract is only concluded upon acceptance of the order by VERTICAS through written, oral, or electronic (via the internet, including email) confirmation. Delivery or invoicing is considered acceptance.
2.2 The customer is responsible for the accuracy of the order; the customer must provide VERTICAS with all necessary information or specifications for the order in a timely manner.
2.3 All sales documents and price lists of VERTICAS are strictly confidential and may not be disclosed to third parties unless they are publicly accessible or have already become known to the customer without violating a confidentiality agreement.
2.4 VERTICAS is committed to complying with applicable data protection laws.
3. Prices, Payment Terms
3.1 The agreed net prices plus the respective applicable statutory value-added tax and shipping and packaging costs apply. For deliveries of small quantities below EUR 250 net value of goods, packaging and transport surcharges will be charged according to VERTICAS's current net price list.
3.2 The customer must make the payment within 30 days of receiving the invoice without deduction (net). If the payment is made within 10 days of receiving the invoice, the customer is entitled to a 2% discount.
3.3 If the customer does not meet its payment obligations on time, VERTICAS is entitled to charge the customer, with merchant status, interest at a rate of 8% above the base rate from the due date, and with non-merchant status, interest at a rate of 5% above the base rate from the date of default. VERTICAS reserves further rights.
3.4 Payments are to be made only by bank transfer or cash payment; bills of exchange and check payments are accepted only by express agreement and only on a collection basis, with an additional charge for all collection and discounting fees.
3.5 If goods are to be delivered with a delivery period of more than 4 months, and material or labor costs, as well as other costs, increase after the contract is concluded, VERTICAS is entitled to adjust the price accordingly. The price increase is limited to the rise in the cost of living and the increase in market prices for the ordered goods in the same period. In the case of price increases of more than 5% of the original price, the customer is entitled to withdraw from the contract. The customer must assert these rights immediately in writing after the declaration of the price increase.
3.6 If circumstances come to VERTICAS's knowledge indicating impairment of the customer's creditworthiness or insolvency, VERTICAS may make further deliveries dependent on advance payment. This also applies if the circumstances become known between the conclusion of the contract and delivery or after one or more partial deliveries. If the customer rejects or does not make the advance payment despite a deadline, VERTICAS is entitled to withdraw from the contract and claim damages. In the event of an application for insolvency over the customer's assets or the opening of insolvency proceedings, there is also a right of withdrawal and compensation for VERTICAS without further conditions. Upon receipt of the withdrawal declaration, all open invoices and compensation claims from VERTICAS become immediately due and payable.
3.7 Offset by the customer is only permissible with undisputed or legally established claims. The customer can only assert rights of retention within the same legal relationship.
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4. Goods Delivery
4.1 The delivery of goods takes place from VERTICAS's warehouse or its agents. The customer must pick up or accept the goods as soon as VERTICAS has notified them of their availability. Otherwise, VERTICAS is entitled to store the goods at the customer's expense and risk and to charge them as delivered ex works.
4.2 VERTICAS decides on the method of dispatch and means of transport. The goods are shipped at the customer's risk and expense. The risk passes to the customer as soon as VERTICAS has handed over the goods to the transport company.
4.3 Enforcement and securing of claims due to transport damage against transport companies are the responsibility of the customer. Upon request, VERTICAS assigns its contractual claims against the transport company to the customer, to the extent that such claims exist and unless VERTICAS has suffered its own damage.
4.4 VERTICAS generally delivers goods packaged by the manufacturer, but reserves the right to use its own appropriate packaging. The customer does not have a right to new packaging, even in the case of replacement deliveries.
4.5 Information about delivery times is non-binding unless a delivery date has been expressly agreed upon as binding. In the event of force majeure (e.g., war, embargo, extensive failure of transport routes, etc.) and other circumstances that VERTICAS is not responsible for, agreed delivery dates are postponed accordingly. VERTICAS is entitled to deliver or perform before the end of a specified or agreed time.
4.6 VERTICAS is entitled to provide partial services to a reasonable extent.
4.7 If the owed service or goods are not available, and VERTICAS is not responsible for the unavailability, VERTICAS is entitled to withdraw from the contract in whole or in part. In this case, VERTICAS is obliged to inform the customer immediately of the non-delivery and to refund any consideration received without delay. The same applies in the event of force majeure.
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5. Inspection Obligation
5.1 The customer must examine the goods immediately upon receipt. If the customer does not object to any recognizable defects, short deliveries, or incorrect deliveries within 4 working days, the delivery is deemed approved.
5.2 The customer must report hidden defects to VERTICAS immediately, no later than 4 working days after their discovery.
5.3 If the customer has resold newly manufactured goods acquired from VERTICAS without changes or connection to other items in a continuous supply chain to a consumer, the prompt passing on of the notice of defects, no later than 4 working days, to VERTICAS is sufficient.
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6. Warranty Claims
6.1 In the event of a defect, the statutory warranty claims of the customer apply, with a restriction to the extent regulated in section 7 below of these General Terms and Conditions.
6.2 If the customer is an entrepreneur, the limitation period for claims of the customer due to defects, i.e., for subsequent performance, self-performance including reimbursement of necessary expenses, compensation, or reimbursement of futile expenses, is 12 months from the statutory commencement of the limitation period. This does not apply in the case of intent, fraudulent concealment of a defect, the absence of a guaranteed quality, injury to life, body, health, or freedom, and if the customer has resold newly manufactured goods acquired from VERTICAS without changes or connection to other items in a continuous supply chain to a consumer.
6.3 If partial services or acceptances have been carried out, the limitation period begins with the delivery of the respective partial service or acceptance.
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7. Liability
7.1 VERTICAS is liable without limitation for intent or gross negligence, as well as for the violation of life, body, or health, if VERTICAS is responsible for the breach of duty, as well as for fraudulent concealment of a defect and the absence of a guaranteed quality. The breach of duty by VERTICAS is equivalent to that of its legal representative or vicarious agent. Liability under the Product Liability Act remains unaffected.
7.2 VERTICAS is liable, limited to foreseeable contract-typical damage, for simple negligence in the violation of essential contractual obligations (cardinal duty or essential ancillary obligation), for simple negligent impossibility or simple negligent delay. Liability due to simple negligence in the violation of non-essential contractual obligations is excluded.
7.3 The customer's contributory negligence, especially in the case of organizational errors or insufficient data backup or information, must be taken into account. VERTICAS is liable for data recovery only to the extent that the customer has taken all usual and reasonable data backup precautions, used current firewalls and antivirus programs, and ensured that the data can be reconstructed with reasonable effort from data material kept in machine-readable form.
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8. Changes to the Goods
VERTICAS may change and improve the goods according to technological progress without prior notice to the customer, provided that the function or form of the goods is not sustainably impaired or changed. VERTICAS is entitled to deliver the customer the successor model of the ordered model if the ordered model is no longer available and does not differ significantly in function or form from the successor model.
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9. Intellectual Property Rights, Assignment Prohibition
9.1 The risk of the legal admissibility of goods and products designed and produced according to customer specifications or customer specifications lies with the customer (e.g., when applying logos and corporate symbols of the customer). In relation to such goods and products, the customer indemnifies VERTICAS from any claims by third parties for the infringement of industrial property rights.
9.2 The rights to concepts, patterns, samples, specifications, presentations, printing templates, and other materials created by VERTICAS belong exclusively to VERTICAS. The customer may not disclose these materials to third parties, not even to obtain third-party offers.
9.3 The assignment of claims arising from the business relationship with VERTICAS to the customer is excluded.
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10. Retention of Title
10.1 The delivered goods remain the property of VERTICAS until all claims against the customer from the business relationship have been fully settled.
10.2 After justified withdrawal from the contract, VERTICAS has the right to reclaim the goods, sell them elsewhere, or otherwise dispose of them as long as the purchase price has not been fully paid.
10.3 Until full payment is made, the customer is obligated to manage the goods in trust for VERTICAS and to keep the goods separate from his other property and that of third parties. Furthermore, the reserved goods must be stored, secured, and insured properly and marked as the property of VERTICAS.
10.4 Before full payment, the customer may use the goods in the ordinary course of business or resell them under retention of title. In the case of resale, the customer hereby assigns the resulting claims in the amount of the invoice amount, with all ancillary rights and priority rights, to VERTICAS, which accepts this assignment. The customer is revocably authorized and obligated to collect the assigned claims. VERTICAS can notify the customer's buyers of the assignment at any time. The invoice amount is considered the value of the reserved goods.
10.5 If the goods are processed, and the processing also includes parts in which VERTICAS has no ownership, VERTICAS acquires co-ownership proportionate to the value of the reserved goods. The same applies in the case of the mixing of goods from VERTICAS with those of others.
10.6 The customer is not entitled to transfer or pledge the reserved goods for security. In the event of seizures or other third-party interventions, the customer must inform VERTICAS immediately.
10.7 The retention of title also applies if individual claims by VERTICAS are included in ongoing invoices or if a balance is acknowledged, unless the balance is settled.
10.8 If the customer suspends payments, insolvency proceedings are applied for or opened over the customer's assets, or a provisional insolvency administrator is appointed, the customer's aforementioned rights to resale, processing, and collection of resulting claims shall expire.
10.9 If the securities resulting from this exceed VERTICAS's claims by more than 20%, VERTICAS undertakes to release the securities, at the customer's or a third party's impaired discretion, to a corresponding extent upon request.
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11. Severability Clause, Jurisdiction, Miscellaneous
11.1 Should individual provisions of these General Terms and Conditions be or become invalid, this shall not affect the validity of the contract or the General Terms and Conditions as a whole.
11.2 German law applies, excluding the UN Convention on Contracts for the International Sale of Goods and conflict-of-law provisions of German law.
11.3 If the customer is a merchant, Wiesbaden is deemed the place of jurisdiction. VERTICAS is entitled to sue the customer at its general place of jurisdiction.
11.4 Side agreements, changes, or additions to the contract, including the waiver of this written form clause, require written form.