A. Scope of Application
1. These General Conditions of Business ("GCs") apply to all contractual relations of SIMUNOVA with legal persons or special funds under public law and with entrepreneurs, i.e. persons who act in performance of their commercial or independent professional activity when entering into the legal transaction ("Customers"). The GCs do not apply to contractual relations of SIMUNOVA with consumers.
2. The GCs apply, in particular, to the following types of contract:
The relevant contract type will be determined by SIMUNOVA in the offer. The respective special provisions pursuant to Clause B. and Clause C. apply to the relevant contract type in a supplementary manner.
3. The GCs apply exclusively. Any deviating, conflicting or supplementary general conditions of business of the Customer only apply with the express written consent of SIMUNOVA. This also applies if SIMUNOVA provides goods/services to the Customer without reservation while being aware of the Customer's general conditions of business.
4. Any legally significant notices or declarations that have to be given by the Customer to SIMUNOVA after conclusion of the contract (e.g. the setting of deadlines, warning notices, notices of defects, declaration of rescission or price reduction, notice of termination) are required to be in writing in order to be effective.
5. Individual agreements shall take precedence over these GCs and particulars stated by SIMUNOVA in confirmations of orders. Particulars stated in confirmations of orders of SIMUNOVA take precedence over these GCs.
1. Offers by SIMUNOVA are subject to confirmation and are not binding.
2. Orders placed by the Customer shall be deemed to be binding offers to enter into a contract. Unless otherwise expressly stated in the order, SIMUNOVA can accept such offers within three calendar weeks of receipt.
III. Delivery Time, Untimely Delivery
1. Delivery times shall be agreed individually or shall be stated by SIMUNOVA upon acceptance of the order.
2. If SIMUNOVA cannot meet delivery times for reasons, for which SIMUNOVA is not responsible, the Customer shall be informed thereof without undue delay and shall be notified of a new delivery time. If the goods/services are also not available within the new delivery time, SIMUNOVA shall be entitled to rescind the contract, either in whole or in part; SIMUNOVA shall without undue delay reimburse the Customer any consideration already paid by the Customer. SIMUNOVA's statutory rights of rescission or termination shall remain unaffected thereby as shall the statutory provisions on the exclusion of the obligation to perform.
3. SIMUNOVA shall only be in default of delivery (Lieferverzug) if the Customer has previously given a warning notice.
IV. Place of Performance, Dispatch of the SIMUNOVA Product
1. The place of performance for goods/services provided by SIMUNOVA is Dresden.
2. Unless expressly otherwise requested by the Customer, SIMUNOVA shall dispatch the product to the Customer's branch set out in the order. The statutory provisions on sales by delivery to a destination other than the place of performance (Versendungskauf) shall apply.
V. Prices, Costs, Payment Terms
1. The Customer shall pay the price indicated in the confirmation of the order plus the statutory value-added tax for the delivery of software/hardware and/or for the provision of support and maintenance services and/or for the use of the web portal.
2. Unless otherwise agreed in the individual case, SIMUNOVA's respectively current prices as applicable at the time the contract is concluded shall apply and, more particularly, ex warehouse and plus the statutory value-added tax.
3. Ex warehouse transportation costs incurred by dispatching the SIMUNOVA product, the costs of any transportation insurance desired by the Customer, as well as taxes, customs, charges and other official duties shall be borne by the Customer.
4. SIMUNOVA's payment claims shall be due 14 days following delivery and issue of the invoice. Upon expiry of the period allowed for payment the Customer shall be in default (Verzug).
5. The Customer shall have rights of set-off or rights of retention only insofar as the Customer's claim has become final and unappealable or is undisputed.
VI. Reservation of Title
1. SIMUNOVA reserves the title to sold ubrigate products until all current and future debts under a purchase contract and any ongoing business relationship have been paid in full (Eigentumsvorbehalt).
2. The SIMUNOVA products which are subject to the reservation of title may not be pledged to third parties, or transferred as security, before the secured debt has been paid in full. The Customer shall notify SIMUNOVA in writing and without undue delay if any third parties attach products belonging to SIMUNOVA.
B. Special Provisons
I. Special Provisions for the Sale of Software
1. The German law on purchases shall apply to the purchase of software by the Customer.
2. The Customer is granted a non-exclusive right to use the software in perpetuity and without any limitation in terms of geography. There shall be no right to sub-license or to surrender the software to third parties temporarily, in particular, there shall be no right to rent out or lend the software. The statutory exhaustion of the right to distribute a copy of the software introduced to the market by SIMUNOVA shall remain unaffected.
4. The right of use entitles the Customer to individually use the software for the intended purpose exclusively on the equipment specified in the offer and/or the confirmation of the order by SIMUNOVA.
5. The Customer may make one back-up copy of the software. The Customer may furthermore observe, examine and test the functioning of the software in order to ascertain the ideas and principles underlying a program element, provided that this is done by actions to load, display, run, transfer or save the programme, to which the Customer is entitled.
6. The Customer shall be entitled to pass on/sell the software once to a third party. In this case, the Customer shall be obliged to hand over to the purchaser and/or the acquiring party all copies which the Customer may have made of the software or to erase the same.
7. SIMUNOVA shall not be obliged to surrender the source code to the Customer. The Customer shall be entitled to reassemble the machine-readable object code into the source code (decompilation) only within the parameters of the narrow statutory provisions (§ 69 e German Copyright Act (UrhG)).
8. The warranty and the liability of SIMUNOVA are governed by Clause
C. I. and III.
III. Special Provisions for the Provision of Support and Maintenance Services
1. There is no obligation to maintain software, in particular there is no obligation to update it ("update") or to improve the operability beyond that agreed upon conclusion of the contract or, if no agreement was made, beyond the usual condition ("upgrade").
2. If SIMUNOVA nevertheless carries out such updates or upgrades upon request by the Customer, this must separately be agreed upon in writing and be remunerated separately; also in this regard SIMUNOVA shall only be liable pursuant to Clause C.III. below. It shall not constitute maintenance, updates or upgrades within this meaning insofar as SIMUNOVA has to accept responsibility for the operability of the software within the scope of the liability for defects in quality and defects in title (Sach- und Rechtsmängel).
C. Warranty and Liability
I. Defects in Quality and Defects in Title in the case of Purchase Contracts
1. Unless otherwise provided below, the Customer's rights in the event of any defect in quality (Sachmangel) or defect in title (Rechtsmangel) in the case of purchase contracts shall be governed by the statutory provisions. The special statutory provisions applicable when the SIMUNOVA product is delivered to a consumer remain unaffected.
2. The basis for any liability on the part of SIMUNOVA for defects shall be the agreement reached on the condition of the SIMUNOVA product. The product descriptions, which were provided to the Customer by SIMUNOVA prior to the Customer's order or which were incorporated into the contract in the same way as these GCs, shall be deemed to be the agreement on the condition of the SIMUNOVA product. If no condition has been agreed, the statutory provisions shall apply.
3. SIMUNOVA shall not be liable for any statements by third parties (e.g. advertising statements).
4. The Customer's duty to inspect and report any complaints shall be as provided by statute. The Customer must report any obvious defects (including delivery of the wrong item or short deliveries) in writing within two weeks of delivery. If the purchaser fails to report a defect in accordance with this sub-clause 4, SIMUNOVA's liability for the unreported defect or defect reported late shall be excluded.
5. If the Customer alters the SIMUNOVA product himself or has it altered by third parties, the claims due to defects shall not apply unless the Customer proves that any errors or faults that have occurred are not attributable to said alterations and the error or fault analysis and correction is not impaired by the alteration. Programming of the software shall also be deemed to be an alteration to the ubrigate product.
6. In case of any defects in title the Customer shall inform SIMUNOVA thereof without undue delay. If any rights of third parties are infringed by the SIMUNOVA product, SIMUNOVA shall be entitled to remedy the defect particularly by obtaining rights of use in favour of the Customer, by altering the SIMUNOVA product or by exchanging the SIMUNOVA product for a non-infringing SIMUNOVA product.
7. In derogation from Section 438(1) no. 3 German Civil Code (BGB) the general limitation period for claims arising out of defects in quality and defects in title shall be one year as of delivery of the SIMUNOVA product. Special statutory provisions (particularly Section 438(1) no.1 and no.2, (3), Section 479 BGB) remain unaffected.
8.Claims of the Customer for damages or reimbursement of expenses incurred in vain shall only exist in accordance with Clause C. III. below but are otherwise excluded.
II. Defects in Quality and Defects in Title in the case of Rental Contracts
1. Unless otherwise provided below, the Customer's rights in the event of any defect in quality (Sachmangel) or defect in title (Rechtsmangel) in the case of rental contracts shall be governed by the terms of the service level agreement and the statutory provisions. The special statutory provisions applicable when the SIMUNOVA product is delivered to a consumer remain unaffected.
2. The basis for any liability on the part of SIMUNOVA for defects shall be the fitness for the contractual use stipulated in the service level agreement. SIMUNOVA does not warrant (zusichern) any characteristics of whatever kind.
3. Any liability of SIMUNOVA for defects existing upon conclusion of the contract is excluded.
4. In case of any defects in title the Customer shall inform SIMUNOVA thereof without undue delay. If any rights of third parties are infringed by the SIMUNOVA product/service, SIMUNOVA shall be entitled to remedy the defect particularly by obtaining rights of use in favour of the Customer, by altering the SIMUNOVA product/service or by exchanging the SIMUNOVA product/service for a non-infringing SIMUNOVA product/ service.
5. Claims of the Customer for damages or reimbursement of expenses incurred in vain shall only exist in accordance with Clause C.III. below but are otherwise excluded.
1. Unless otherwise provided in these GCs, in the event of any breach of contractual or non-contractual obligations, SIMUNOVA shall be liable in accordance with the statutory provisions.
2. SIMUNOVA shall be liable for damages - irrespective of the legal ground - in cases of intent and gross negligence.
3. In addition SIMUNOVA shall also be liable in cases of ordinary negligence for loss arising out of any injury to life, body or health as well as for loss arising out of the breach of a material contractual duty (obligation, the fulfilment of which is required to allow proper performance of the contract and on performance of which the Customer usually relies, and may rely). In the event that a material contractual duty is breached, SIMUNOVA's liability shall, however, be limited to damages for the foreseeable loss that typically occurs. The above limitation of liability shall not apply to claims of the Customer under the German Product Liability Act (Produkthaftungsgesetz).
4. In the event of any loss of data by the Customer caused by SIMUNOVA, SIMUNOVA shall be liable in accordance with the above Clauses solely for the costs of duplicating the data from the back-up copies that are to be made by the Customer regularly and only for the restoration of such data as would have been lost even if the data had been properly backed-up.
5. The Customer can rescind or terminate because of a breach of duty, which does not consist of a defect, only if SIMUNOVA is responsible for the breach of duty. In all other cases the statutory prerequisites and legal consequences shall apply.
Contract Language, Choice of Law, Place of Jurisdiction
1. The contract language is German. The German version of these GCs shall be authoritative for their interpretation, even if SIMUNOVA has only provided the Customer with an English version of the GCs.
2. Contracts within the scope of application of these GCs shall be governed solely by the law of the Federal Republic of Germany to the exclusion of all international and supranational contractual legal systems, in particular the UN Convention on Contracts for the International Sale of Goods.
3. If the Customer is a businessman (Kaufmann) within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal person under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for any and all disputes arising from the contractual relationship is the place of business of Dresden. However, SIMUNOVA may also bring an action at the general place of jurisdiction of the Customer.