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NIK: Nik Software GmbH - Hammerbrookstrasse 93 - 20097 Hamburg. |
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Consumer: A natural person who enters into a business relationship with NIK that is neither attributable to his/her commercial nor to his/her independent professional activities (§ 13 BGB ). |
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Business Customer: A customer who enters into a business relationship with NIK in pursuance of his/her commercial or independent professional activities. |
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Customer: A consumer, business customer and any other person who enters into a business relationship with NIK. |
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IP (Intellectual Property): Patents, trademark rights, copyrights, etc. |
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Offer: A statement made by NIK to Customers without engagement. |
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Order: Offer made by the Customer to NIK within the meaning of §§ 145 f. BGB. |
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Confirmation of an Order: Written confirmation of the Customer's order by NIK, declaration of acceptance of NIK within the meaning of §§ 147 ff. BGB. |
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Business Relationship: Any legal and factual relationship between NIK and a Customer. |
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Price: The consideration to be paid for products or services, exclusively according to offer or confirmation of the offer, generally plus VAT at the legal rate in force on the date of delivery, including VAT for Consumers; plus packaging cost, unless expressly included. |
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Products: Exclusively the goods specified in the offer or confirmation of the offer, including third-party products and software as well as appurtenant services. |
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Service: Maintenance, repair and exchange services rendered by NIK as agreed service; services may also be rendered through partners. |
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Software: Operating system, application and other software that is manufactured by NIK or another NIK company, owned or licensed by it. |
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Third-Party Products: Products, software and other services not manufactured by NIK and/or not bearing the "NIK" trademark, but distributed by NIK or provided through NIK by order. |
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These Terms and Conditions apply to the present business relationship (e.g. purchase, service agreement, etc.) between NIK and the Customer as well as to statements made in that connection in brochures, price lists, advertisements, etc., whether orally, in writing or via the internet. Unless expressly agreed in writing, any diverging terms and conditions of the Customers shall not be applicable, unless that has been expressly agreed between the parties.
Offers of NIK are exclusively made in writing. Offers remain in force for a period of 10 days. Warranties shall only be binding to NIK if and as far as they are specifically given or designated as such by NIK in an offer or otherwise. In any case, warranties are given as single obligations only.
After checking the order, NIK sends the Customer a confirmation of the order. Unless the Customer immediately raises an objection in case of deviations, if any, the content of the confirmation of the order shall be regarded as content of the contract. In view of the continuous further development of the state of the art, of the products and services, NIK reserves the right to alter products and services any time, provided an at least similar functionality and performance is guaranteed.
The price to be paid by the Customer results from NIK's confirmation of the order and/or invoice. Under contracts with enterprises, NIK reserves the right to adjust prices accordingly in case of changes in exchange rates, customs duties, taxes, freight and insurance costs, cost prices (e.g. for components and services), with effect to future transactions within the scope of a running business relationship. Payment shall be made in advance, unless otherwise agreed. In the event of delay in payment, NIK reserves the right to retain deliveries, partial deliveries and/or services until payment in full, to claim default interest at the legal rate and to assert claims for further damage caused by the delay. Discounts are not granted.
Consumers shall also get into default without warning if they have failed to pay an invoice amount within 30 days from invoicing (date of the invoice) and if NIK has expressly pointed to that consequence in the invoice.
The Customer can only assert a right of retention for counterclaims under this contractual relationship.
The Customer can only set off against any claims that have become res judicata or are undisputed.
Time of delivery is only stated approximately. As far as possible, any missing, wrong or damaged products and/or packages shall be indicated on the consignment note before signing it. NIK is entitled to make partial deliveries. The place of delivery is stated on the confirmation of the order. In case of a default in taking delivery, the Customer must bear the resulting costs, in particular costs of storage. NIK shall only get into default in delivery by means of a written reminder that, however, cannot be given earlier than two weeks from expiry of the non-binding time of delivery. At NIK's request, the Customer shall be obliged to declare within a reasonable time whether, as a consequence of the delay in the delivery, the Customer wants to withdraw from the contract and/or claim damages instead of performance or insist on delivery. Within the scope of the applicable legal provisions, the Customer can only withdraw if NIK is responsible for the delay in delivery.
In general the time of delivery is the date of the invoice, except the parties have expressively agreed otherwise.
Ownership of the products delivered shall only pass to the Customer upon payment in full of the purchase price. The Customer is not entitled to pledge, assign by way of security, process or transform the reserved goods before the passing of ownership. The Customer is entitled to resell the reserved goods within the ordinary course of business, but already now assigns to NIK all resulting claims against his/her contract parties to the amount owed to NIK for securing NIK's claims for payment. NIK accepts that assignment. In case the customer is in default with one or more payments as a whole or in part or suspends payments or if the institution of insolvency proceedings against his/her assets has been applied for, the Customer must not dispose of the reserved goods anymore. In such case, NIK shall be entitled to withdraw from the contract without having to grant the Customer a period for performance before. Even without withdrawing, NIK shall be entitled to demand surrender of the reserved goods or revoke the Customer's authorization to collect the claims from resale.
Consumers are subject to the applicable legal provisions.
If the Purchaser is not a Consumer, the following shall apply:
The
quality of the Products is finally described in the confirmation of the order. Any characteristics of the Products that can be expected according to public statements made by NIK or its agents in particular in advertising or in the marking of the goods or on the basis of a trade practice shall only be part of the agreed quality if they have been stated in writing in an offer or confirmation of an offer. If the products, at the time of the passing of risk, do not have the agreed quality or otherwise have a defect within the meaning of §§ 434 ff. BGB, NIK shall be entitled, in derogation from § 439 BGB, at its option to either remove the defect or deliver a replacement. For this purpose, NIK shall be entitled at its choice to examine the products either at the Purchaser's or at NIK's premises. In case of a removal of defect/delivery of replacement, NIK shall become the owner of the removed/replaced components/devices. Within the framework of production as well as for removal of defects/delivery of replacements, NIK shall use spare parts or components that are new or as new according to the respective customary industrial standard. Any further legal claims of the Purchaser remain unaffected.
Claims
based on defects become statute-barred twelve months from the date of delivery, unless NIK has fraudulently concealed the defect. The statutory limitation of the recourse claims of enterprises remains unaffected as far as the newly manufactured products are resold to Consumers in the course of business operations. Statutory recourse claims shall only exist as far as the Customer has not entered into any agreements with the Consumer that go beyond the statutory warranty claims.
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Defects of quality do not include in particular: |
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any defects attributable to improper installation by the Purchaser or a third party instructed by the Purchaser, to operating errors, to tampering with or modification of the products by the Customer or by an non-authorized third party as well as to external influence on the products; |
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services rendered in accordance with the specifications of the Customer; |
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defects in third-party products: in such cases, the Customer shall mainly turn to the respective manufacturer for obtaining a removal of defects. If that should fail, the above provisions with regard to NIK's warranty shall apply accordingly. |
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Business Customers and other Customers who are not Consumers must immediately examine the products delivered as to conformity with the contract. Otherwise the products delivered shall be regarded as accepted.
Services are rendered by NIK or its service partners. Any response periods are agreed on an approximate basis only. The provisions of Item 12. - Liability - apply accordingly. Services can also be rendered on the phone or via the internet. As far as agreed, they can comprise, apart from repair and installation services, integration, marking, disposal, training and consulting services. In case of a replacement of components/devices, the removed/replaced components/devices shall pass into the ownership of NIK.
Unless otherwise agreed, the following services are cases not covered by the contractual services so that claims for defects of quality are excluded according to Item 7 above: configuration work; work outside the regular business hours; relocation of products; preventive maintenance (repair); substitution of consumables; substitution of data processing media; work not required for repair; work on the electric environment of the Customer; software and/or data transfer; elimination of computer viruses occurring at the Customer. Third-party products are exclusively subject to the provisions of the respective manufacturers.
NIK shall only be liable for intentional or grossly negligent acts or omissions of its staff. NIK is only liable for slight negligence on part of its staff if material contractual duties are violated in a manner that jeopardizes the purpose of the contract. In such case, liability for damage occurred (including also indirect damage), also per serial damage, is limited to the amount of the foreseeable damage the occurrence of which must be typically expected, but in no case more than the respectively applicable amount insured for such cases under the third-party liability insurance of NIK, currently to a maximum amount of € 1.000.000,-. Any rights and claims, on whatever legal grounds, going beyond this are excluded. This applies in particular to compensation for indirect damage, especially consequential damage, loss of profit, etc.
NIK is not liable for a loss of data and/or programs as far as such damage is caused as a consequence of the Customer's failure to make data backups and/or guarantee a restoration of data at justifiable expense.
Any claims under the Product Liability Act, claim based on defects after giving a warranty for the quality of a product, in case of fraudulently concealed errors or based on damage to health, body and life as well as any claims that have already arisen at the time these Terms and Conditions are included due to fault in contract negotiations remain unaffected by the above limitations of liability.
The above limitations of liability apply accordingly to personal claims against members of NIK's staff and persons instructed by NIK, in particular with regard to claims for damages and reimbursement for expenses incurred.
NIK shall not be liable for any delay in performance due to events of force majeure (strike, riot, forces of nature, official orders, general failure of telecommunications, etc.) and delaying circumstances in the sphere of responsibility of the Customer. Such delay shall entitle NIK to postpone the performance of its service/delivery affected for the duration of the impediment or for a reasonable additional lead time - NIK shall inform the Customer accordingly.
With regard to the services/products rendered/delivered, NIK grants the Customer the non-exclusive right not limited in space and time to use the service/product according to the contract. §§ 69d and 66e UrhG apply to software. Any utilization beyond this is impermissible.
The Customer
is in particular prohibited from granting sublicenses, duplicating, hiring out or otherwise exploiting the services/products, unless otherwise agreed in writing between the parties.
NIK shall indemnify the Customer against any claims of a third party for infringement of an intangible property right of a third party. The Customer must immediately notify NIK in writing of any such claims and make it possible for NIK to take all required legal defence measures (this includes i.a. the conducting of proceedings, including compromises). The Customer will support NIK as far as possible.
NIK will either alter products that infringe intangible property rights, or replace them with non-infringing products or refund the purchase price minus a reasonable utilization fee to the Customer. Any possible claims for damages are subject to the preceding sections hereof. This indemnity does not cover any claims that are entirely or in part based on the fact that the Customer has made non-authorized changes in the products or has combined or used the products with other products or services.
In case of an infringement of protective rights of a third party, NIK - without prejudice to the foregoing provisions - shall be entitled, at its option and at its expense and maintaining the Customer's interests, to either make any changes that guarantee that an infringement of protective interests ceases to exist or acquire the required utilization rights for the Customer.
Any software included in NIK's delivery but not manufactured by NIK is subject to the provisions of the respective licence agreement. NIK shall enclose any required licences with the products; the terms and conditions of licence are to be accepted by the Customer.
The products delivered may include technologies and software that are subject to the respectively applicable export control regulations of the Federal Republic of Germany and the export control regulations of the United States of America or of the countries that the products are delivered to or where they are used. The same applies to import regulations. According to the above-mentioned import/export regulations, the products must in particular not be delivered or licensed to defined users, to defined countries or for defined purposes. The Customer obliges itself to comply with these regulations.
Customer data are subject to electronic data processing. In the use of personal data, NIK will observe the relevant data protection regulations (in particular the German Federal Data Protection Act) as well as NIK's internal data protection guidelines. NIK may transmit personal data to service partners and other companies of the NIK group that may be located outside the European Economic Area, e.g. NIK in the USA, observing appropriate security measures. The NIK Data Protection Policy can be found under www.niksoftware.com/dataprotection/ or can be ordered from NIK any time.
Both parties will treat confidentially, also after termination of the business relationship, all operating and business secrets of the respective other party that are marked or apparently identifiable as such and come to their knowledge within the scope of the business relationship.
As far as applicable according to the legal nature of the contract concluded, either party, without prejudice to the assertion of further rights, shall be entitled to terminate or rescind an existing contract in the following cases: Violation of a material contractual duty in a manner jeopardizing the purpose of the contract by the respective other party; lasting violation of contractual duties, unless it is ended within a reasonable period from the receipt of a respective request of the non-violating party; institution of insolvency proceedings against the assets of the respective other party or application for their institution.
NIK shall be entitled to rescind a contract in case the Customer, in spite of a reasonable period granted by NIK, fails to pay the agreed compensation or if the Customer infringes any export regulations.
In addition, the Customer agrees to provide NIK with all information required for performing the services/deliveries; to grant NIK in so far access to the products and to cooperate as far as required. Prior to the performance of removal of defects, delivery of replacement or services, the Customer shall remove all components, products, etc. not installed by NIK and create backup copies of files and programs. Unless expressly otherwise agreed, data backup is not in NIK's area of responsibility.
Consumers can revoke orders aiming at the conclusion of a distance contract within a period of 2 weeks from receipt of the products without stating any reasons in a written form or by returning the products. Simultaneously with the revocation or return, the Consumer must completely remove all data of the products/software from all media.
For observing the revocation period, it is sufficient to send the revocation or the item in time.
The revocation is to be addressed to NIK under Item 1 of these General Terms and Conditions.
Consumers are given a detailed information with regard to § 312 c BGB separately in a written form.
The business relationship is subject to German law, excluding the UN Sales Convention. As far as the Customer is a registered merchant, the exclusive place of jurisdiction for all disputes in connection with the business relationship shall be Hamburg. Our registered seat shall be the place of performance, unless otherwise stated in the confirmation of the order.
If any individual provisions of these General Terms and Conditions or of the other agreements between the parties should be invalid as a whole or in part, this shall not affect the validity of the remaining provisions. In such a case, the parties will replace the invalid provision by a valid one that comes as close as possible to the economic purpose of the invalid provision. The same shall apply accordingly to gaps in the agreements, if any.
All
alterations of and additions to contractual agreements must be made in writing for purposes of proof. Notices of termination and rescission must be given in writing, too.
Any alteration of the above written-form requirement must be expressly made in writing.
Nik Software GmbH
Hammerbrookstraße 93
D-20097 Hamburg
Germany
Phone +49-40-471135-0
Fax +49-40-471135-35
infoeu@niksoftware.com
Nik Software GmbH, © 2006, version 5/2008
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