General terms and conditions

General terms and conditions

Status: July 2020

I. Scope of application

Our Terms and Conditions of Sale and Delivery (hereinafter: GTC) apply exclusively. Any terms and conditions of the customer that deviate from our GTC shall not apply. If the customer is an entrepreneur, these Terms and Conditions shall apply for the entire duration of current and future business relations with the customer, even if they are not expressly referred to in a subsequent transaction.

II. scope of contract

Our written order confirmation shall be decisive for the scope of delivery; in the event of an offer on our part, this shall be decisive, but in the event of a time limit on our offer only if it is accepted within the time limit; if the time limit is exceeded, we shall no longer be bound by the offer.

III. prices and payment

Unless otherwise agreed, prices are ex works (FCA Donaueschingen, ICC Incoterms 2010), including loading at the factory, but excluding packaging. Value added tax at the applicable statutory rate shall be added to the prices.

In the absence of a special agreement, payment shall be made in cash, free to our paying agent, strictly net within 10 days of the invoice date. In the event of late payment, we may charge interest on arrears at the usual bank rate, unless we can prove a higher loss of interest or the customer can prove a lower loss of interest. Our right to demand default interest at the statutory default interest rate shall remain unaffected in any case. Offsetting against any counterclaims of the customer disputed by us, with the exception of legally established claims, is not permitted.

IV. Delivery time

The delivery period shall commence upon receipt of the order confirmation by the customer, but not before the customer has fulfilled its contractual obligations, in particular any documents, approvals and releases to be provided by the customer and receipt of any agreed down payment. The delivery deadline shall be deemed to have been met if the delivery item has left the factory or readiness for dispatch has been notified by the time it expires. The delivery period shall be extended appropriately in the event of force majeure, in particular in the event of measures in the context of labor disputes, here again in the event of strikes and lockouts, as well as in the event of other unforeseen obstacles beyond our control, insofar as such obstacles demonstrably have a considerable influence on the completion or delivery of the delivery item. This shall also apply if these circumstances occur at our suppliers. We shall also not be responsible for the aforementioned circumstances if they occur during an already existing delay. We shall inform the customer immediately of the beginning and end of such hindrances.

V. Licence conditions software

§1 Subject matter of the contract
(1) The subject matter of this software license grant is the granting of rights of use and exploitation of the software specified in the respective contract ("subject matter of the license") from us to the customer.

(2) The subject of the licence consists of the object code of the software and the documentation.

§2 Granting of rights
(1) With this agreement, we grant the customer the simple, non-transferable right to use, reproduce and process the subject matter of the license in accordance with this agreement, unlimited in time and space.

(2) At our request and insofar as we have a legitimate interest, the customer shall allow us or a third party commissioned by us to check whether the use of the subject matter of the license is within the scope of the rights granted by this agreement; the customer shall support us to the best of its ability in carrying out such a check.

§3 Transfer and installation of the subject matter of the license
(1) We shall provide the Customer with the number of copies of the subject matter of the license required to exercise the rights of use and exploitation granted herein as well as the documentation as an electronic document. The parties agree that the place of performance for the transfer of the subject matter of the license shall be the registered office of tepcon GmbH. The customer shall bear all costs and risks associated with the transfer. The risk of transportation (in particular the risk of accidental loss or destruction) of the copies of the Licensed Product shall pass to the Purchaser upon delivery of the Licensed Product.

(2) The Purchaser is responsible for providing the system environment in accordance with the requirements specified in the contract.

(3) The Licensed Material shall be installed by the Purchaser.

§4 License fees
License fees for the granting of the rights granted under this agreement shall be paid in accordance with the contractual agreements.

§5 Claims for material defects
(1) The software provided by us essentially corresponds to the product description. Warranty claims for defects shall not exist in the event of an insignificant deviation from the agreed or assumed quality and in the event of only insignificant impairment of usability. Product descriptions do not constitute a guarantee without a separate written agreement. In the case of update, upgrade and new version deliveries, claims for defects are limited to the innovation of the update, upgrade or new version delivery compared to the previous version status.

(2) If the customer demands subsequent performance due to a defect, we shall have the right to choose between repair, replacement delivery or replacement performance. If the customer has set us a further reasonable period of grace after the first period has elapsed without result and this has also elapsed without result or if a reasonable number of attempts at rectification, replacement delivery or replacement performance have been unsuccessful, the customer may withdraw from the contract under the statutory conditions and demand compensation for damages or expenses. Subsequent performance may also be effected by handing over or installing a new program version or a workaround (= detour to avoid a known malfunction of a technical system). If the defect does not impair the functionality or only insignificantly, we shall be entitled to remedy the defect by delivering a new version or an update within the scope of its version, update and upgrade planning, to the exclusion of further warranty claims for defects.

(3) Defects shall be notified in writing by means of a comprehensible description of the symptoms of the defect, as far as possible evidenced by written records, hard copies or other documents illustrating the defects. The notice of defects should make it possible to reproduce the defect. The Purchaser's statutory obligations to inspect and give notice of defects shall remain unaffected.

(4) The limitation period for claims for defects is 12 months. The period begins with the delivery of the first copy of the licensed item including the documentation. In the case of the delivery of updates, upgrades and new versions, the period for these parts shall commence upon delivery.

(5) The customer shall inspect the delivered items immediately for any transport damage or other external defects, secure the relevant evidence and assign any recourse claims to us, handing over the documents.

(6) Claims for damages are subject to the restrictions of section VI.

(7) Modifications or extensions to the services or delivered goods carried out by the customer himself or by third parties shall invalidate the customer's warranty claims for defects unless the customer can prove that the modification or extension is not the cause of the defect. We shall also not be liable for defects that are attributable to improper operation and operating conditions or the use of unsuitable equipment by the customer.

§6 Claims for defects of title
(1) The software delivered or provided by us is free of third-party rights that prevent use in accordance with the contract. Excluded from this are customary reservations of title.

(2) If third parties are entitled to such rights and assert them, we shall do everything in our power to defend the software against the asserted rights of third parties at our expense. The customer shall inform us immediately in writing of the assertion of such third-party rights and shall grant us all powers of attorney and authorizations necessary to defend the software against the asserted third-party rights.

(3) Insofar as defects of title exist, we are (a) entitled, at our discretion, (i) to take lawful measures to eliminate the rights of third parties which impair the contractual use of the software, or (ii) to eliminate their assertion, or (iii) to modify or replace the software in such a way that it no longer infringes third-party rights, if and insofar as this does not significantly impair the owed functionality of the software, and (b) obliged to reimburse the necessary reimbursable costs of legal action incurred by the customer.

(4) If the indemnification pursuant to para. 3 fails within a reasonable grace period set by the Purchaser, the Purchaser may withdraw from the contract under the statutory conditions and claim damages.

VI Liability, compensation

(1) We shall only be liable under this contract in accordance with the following provisions in (a) to (e): a) We shall be liable without limitation for damage caused intentionally or through gross negligence by us, our legal representatives or executive employees and for damage caused intentionally by other vicarious agents; for gross negligence by other vicarious agents, liability shall be determined in accordance with the provisions for slight negligence set out in (e) below. b) We shall be liable without limitation for damages caused intentionally or negligently by us, our legal representatives or vicarious agents due to injury to life, limb or health. c) We shall be liable for damages due to breach of independent warranty promises up to the amount which was covered by the purpose of the warranty and which was recognizable to us when the warranty was given. d) We shall be liable for product liability damages in accordance with the provisions of the Product Liability Act. e) We shall be liable for damages arising from the breach of cardinal obligations by us, our legal representatives or vicarious agents; cardinal obligations are the essential obligations which form the basis of the contract, which were decisive for the conclusion of the contract and on the fulfillment of which the customer may rely. If we have only breached these cardinal obligations through slight negligence, our liability shall be limited to the amount that was foreseeable for us at the time of the respective performance.

(2) We shall only be liable for the loss of data up to the amount that would have been incurred to restore the data if it had been properly and regularly backed up.

(3) Any further liability of tepcon GmbH is excluded on the merits.

VII. commissioned data processing

(1) We act as a commissioned data processor for our company's tracking and IoT products and process personal data for the customer (client within the meaning of the GDPR) on the basis of the contract concluded. Our contractually agreed service is provided exclusively in a member state of the European Union or in a state party to the Agreement on the European Economic Area. Any relocation of the service or parts thereof to a third country requires the prior consent of the customer and may only take place if the special requirements are met (e.g. adequacy decision of the Commission, standard data protection clauses, approved codes of conduct). If the customer carries out data processing outside the scope of protection of the GDPR, it must ensure compliance with the standards. The duration of the order can be found in the underlying contract.

(2) The type and purpose of the processing result from the underlying contract. The Customer alone shall determine the purposes and means of the processing of personal data. Joint responsibility is excluded.

(3) Rights and duties as well as powers of instruction of the Purchaser

The customer is solely responsible for assessing the permissibility of the processing and for safeguarding the rights of the data subjects. This applies in particular to compliance with individual and collective labor law data protection regulations that are affected by the tracking products used by our company. If a data subject contacts us with requests for correction, deletion or information, we will refer the data subject to the customer, provided that the data subject can be assigned to the customer according to the information provided by the data subject. We will support the customer within the scope of our possibilities. We are not liable if the request of the data subject is not answered by the customer, is not answered correctly or is not answered on time. Changes to the object of processing and procedural changes must be jointly agreed between the customer and us and specified in writing or in a documented electronic format. As a rule, the customer shall issue all orders, partial orders and instructions in writing or in a documented electronic format. Verbal instructions must be confirmed immediately in writing or in a documented electronic format. The Customer shall be entitled to satisfy itself as set out in (5) before the start of processing and then regularly in an appropriate manner of compliance with the technical and organizational measures taken by us and the obligations set out in this contract.

The customer is obliged to treat as confidential all knowledge of our business secrets and data security measures obtained in the course of the contractual relationship. This obligation shall remain in force even after termination of this contract.

(4) Authorized instructors and recipients of instructions are named in the underlying contract. In addition, the communication channels to be used for instructions shall be named; as a rule, these are the exact postal address, e-mail address and telephone number. In the event of a change or long-term absence of contact persons, the contractual partner must be informed immediately and in principle in writing or electronically of the successors or representatives. The instructions must be kept for their period of validity and subsequently for three full calendar years.

(5) Our duties as contractor

We process personal data exclusively within the framework of the agreements made and in accordance with the instructions of the customer, unless we are obliged to process it differently by the law of the Union or the Member States to which we are subject (e.g. investigations by law enforcement or state security authorities); in such a case, we will inform the controller of these legal requirements prior to processing, unless the law in question prohibits such notification due to an important public interest. We do not use the personal data provided for processing for any other purposes. Copies or duplicates of the personal data are not created. The customer authorizes the use of the data in the normal course of business to achieve system improvements and to rectify errors, whereby the data will not be passed on to third parties. In the area of processing personal data in accordance with the order, we ensure that all agreed measures are carried out in accordance with the contract. We also ensure, as far as technically possible, that the data processed for the customer is strictly separated from other data stocks. The data carriers that originate from the customer or are used for the customer are specially marked. We shall carry out appropriate checks throughout the entire processing of the service for the customer. As far as possible, we shall provide the customer with appropriate support in the fulfillment of the rights of the data subjects by us, in the preparation of the records of processing activities and in the necessary data protection impact assessments of the customer. We shall notify the customer immediately if, in our opinion, an instruction issued by the customer violates statutory provisions. We are entitled to suspend the execution of the corresponding instruction until it has been confirmed or amended by the person responsible at the customer after review. We must correct, delete or restrict the processing of personal data from the contractual relationship if the customer requests this by means of an instruction and this does not conflict with our legitimate interests. We agree that the customer is entitled - by appointment - to check compliance with the regulations on data protection and data security as well as the contractual agreements to the appropriate and necessary extent himself or through third parties commissioned by the customer, in particular by obtaining information and inspecting the stored data and the data processing programs as well as through on-site checks and inspections. Where necessary, we will assist with these checks. We hereby confirm that we are aware of the relevant data protection regulations of the GDPR for order processing. We undertake to observe the customer's confidentiality rules relevant to the respective order, in particular its confidentiality rules under labor law. We undertake to maintain confidentiality when processing the customer's personal data in accordance with the order. This obligation shall continue to exist even after termination of the contract. We shall ensure that we familiarize the employees engaged in the performance of the work with the data protection provisions applicable to them before they commence their work and that they are bound to secrecy in an appropriate manner for the duration of their work and after termination of the employment relationship.

(6) Liability

We shall be liable together with the customer in the external relationship pursuant to Article 82 (1) GDPR for material and immaterial damage suffered by a person due to a breach of the GDPR. If both the customer and we are responsible for such damage in accordance with Article 82(2) GDPR, the parties shall be liable internally for this damage in accordance with their share of responsibility. If, in such a case, a person makes a claim for damages against one party in whole or in part, that party may demand indemnification or hold harmless from the other party to the extent that this corresponds to its share of responsibility.

(7) Subcontracting relationships with subcontractors within the meaning of Art. 28 (3) sentence 2 lit. d DS-GVO)

We may commission subcontractors to process the customer's data in the normal course of business. Subsequent consent to the use of subcontractors may be granted to us if we inform the customer of the name and address as well as the intended activity of the subcontractor. In addition, we must ensure that we carefully select the subcontractor, taking particular account of the suitability of the technical and organizational measures taken by the subcontractor within the meaning of Art. 32 GDPR. We must contractually ensure that the provisions agreed between us and the customer also apply to the subcontractor. In the contract with the subcontractor, the information must be specified in such concrete terms that the responsibilities between us and the subcontractor are clearly delineated. If several subcontractors are used, this shall also apply to the responsibilities between these subcontractors. In particular, the customer must be entitled to carry out appropriate checks and inspections, including on site, at subcontractors or have them carried out by third parties commissioned by the customer. The customer shall be informed immediately of any changes. If there is a substantial reason, the customer shall have the right to object to the change within 2 weeks of receipt of the notification of change.

(8) Technical and organisational measures pursuant to Art. 32 DS-GVO (Art. 28 Para. 3 Sentence 2 lit. c DS-GVO)

The customer shall be informed of our technical and organizational measures in the contract. He shall be responsible for ensuring that these offer an appropriate level of protection for the risks of the data to be processed. We reserve the right to change the security measures taken, although it must be ensured that the contractually agreed level of protection is not undercut.

(9) Our obligations after termination of the order

After completion of the contractual work, we shall delete or destroy all data, documents and processing or usage results created in connection with the contractual relationship that have come into our possession and those of subcontractors in accordance with data protection regulations. The customer shall receive notification of this so that it can back up its data. The deletion or destruction must be confirmed to the customer in writing or in a documented electronic format, stating the date.

VIII Choice of law and place of jurisdiction

All legal relationships between us and the customer shall be governed by the law of the Federal Republic of Germany to the exclusion of the Vienna UN Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG). The local and international place of jurisdiction for all disputes arising from the contractual relationship shall be our registered office. We are also entitled to take legal action at the customer's headquarters.

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