1.1 All our offers, deliveries and services are based on these General Terms and Conditions. They therefore also apply to all future business relations, even if they have not been expressly referred to again. These terms and conditions shall be deemed accepted at the latest upon receipt of the goods or services. Contradictory terms and conditions of the other party to the contract are explicitly objected to; these shall not apply even if we carry out the delivery without explicit objection in the specific case.

1.2 Deviations from these General Terms and Conditions are only effective if they have been agreed in writing.

2.1 The subject matter of the contract is determined by the content of the offer. Our offers are subject to change. A binding declaration of intent shall only be made with the written order confirmation.

2.2 Declarations on our part concerning ancillary agreements, supplements or amendments to the contract must also be made in writing in order to be binding on us.

2.3 Quoted prices are always net prices and are subject to the statutory value added tax at the applicable rate.

The purchase by the other contracting party of the products distributed by us on the one hand and services provided by us on the customer’s behalf on the other hand shall each constitute independent services. This also applies if we have offered products and services in only one offer or confirmed them in only one order confirmation.

4.1 The deadlines and dates stated by us are only binding if they have been agreed in writing. The running of a deadline begins with the date stated in the order confirmation, otherwise with the date of the order confirmation.

4.2 If the subject of the contract is the provision of a consultancy service and inPuncto recognizes that the planned processing period is not sufficient, they shall submit written proposals for changes to the client, stating the reasons, as the basis for a mutually agreed extension of the processing period.

4.3 In the event of delays in performance or delivery due to force majeure, strike, official orders, failure to receive correct and timely deliveries from our suppliers or for other reasons for which we are not personally responsible, the agreed delivery period shall be extended accordingly.

4.4 In the event of impediments to performance as a result of force majeure and as a result of breach of contract by our upstream supplier with whom the hedging transaction was concluded, we shall be entitled, at our discretion – instead of extending the delivery period – to withdraw from the contract if it is unreasonable to expect us to adhere to the contract.

4.5 We shall not be responsible for disruptions in performance due to procurement difficulties of the aforementioned kind for which we are not responsible, even in the case of an indeterminate obligation.

4.6 If an agreed delivery period is otherwise culpably exceeded by more than 1 week, the other party to the contract shall be entitled, after expiry of a grace period of at least 2 further weeks to be set by us in writing, to withdraw from the contract or to claim damages for non-performance in accordance with the following clause 11, insofar as the other party to the contract cannot reasonably be expected to adhere to the contract.

4.7 We are also entitled to provide partial services. We are only entitled to finally provide only a part of the contractually agreed performance if this is not without interest for the other party to the contract according to the content and purpose of the contract.

5.1 Installation of and training in the software supplied shall only be owed in return for payment if expressly commissioned separately.

5.2 The agreement on the installation of the software supplied by us only includes the installation of the software in a system provided by the other party to the contract, which must fully comply with the requirements specified by us.
The other party to the contract is obliged to provide us with all information about the installation, in particular technical data, as well as about all software programs operated on the system.
Furthermore, the other party to the contract is obliged to make a complete backup of its data already stored on the system before installing the software.

5.3 We shall not be liable for the loss of or damage to data already stored during the installation of the software supplied by us. This also applies if the other party to the contract carries out the installation themselves.

5.4 Claims for damages arising from the loss of or damage to data already stored or from reconstruction work required due to this are excluded.

5.5 The other party to the contract is obliged to prevent damage by prior complete data backup, also when installing updates.

5.6 An agreed training in the software supplied by us shall only include the provision of the necessary knowledge to be able to access and start a purchased user program. There shall be no entitlement to the provision of more extensive IT knowledge and knowledge of the content of the program.

5.7 Training requested by the other party to the contract shall take place within the framework of a separate agreement to be concluded against payment.

6.1 All our prices are valid as of our headquarters in Esslingen, Fabrikstr. 5. The statutory value added tax is indicated.

6.2 If the subject matter of the contract is the provision of a consultancy service, the following shall apply in addition:
Insofar as a fixed price was not explicitly agreed when the order was placed, billing shall be based on time and material up to the agreed upper cost limit. In the event of an agreement on billing according to expenditure, inPuncto shall inform the other party to the contract without delay if it is foreseeable that the desired result cannot be achieved within the agreed upper cost limit. inPuncto shall in such a case submit proposals on how to proceed.

7.1 Payments are due 14 days after the invoice date. Payments are to be made free of any deductions to the account of inPuncto.

7.2 If the other party to the contract is in default with its payment obligation, we shall be entitled to demand interest in the amount of 9 per cent above the respective current base interest rate pursuant to § 1 of the Discount Rate Transition Act of 9 June 1998 as default interest.

The right to claim further damage caused by default is explicitly reserved. If the transaction is also a commercial transaction for the other party to the contract, default interest shall be charged at the stated rate as of the due date.

7.3 Furthermore, due to the default, all claims against the other party to the contract become due immediately, even if a later due date had initially been agreed.

7.4 If several claims against the other party to the contract are due or if he is in default, payments received shall first be set off against the interest and the further damage caused by default and then against the oldest principal claim, notwithstanding any provision of the other party to the contract to the contrary.

7.5 If the Consumer Credit Act applies, the mandatory provisions of this Act shall apply instead of the provisions of this section.

7.6 A set-off against the claims of inPuncto is only permissible with undisputed or legally established claims.

8.1 Place of performance is our head office.

8.2 If the goods are dispatched to a place other than the place of performance at the request of the other party to the contract, the risk of accidental destruction, loss or damage shall pass to the other party to the contract at the time when the goods have left our warehouse for the purpose of dispatch or have been handed over to the person appointed to transport them.

9.1 We reserve title to the delivered goods until full payment in full of all claims arising from the business relationship with the other party to the contract, irrespective of their nature and legal basis. These goods are hereinafter referred to as reserved goods.

9.2 Processing or transformation of the goods subject to retention of title shall always be carried out for us as manufacturer, without any obligations arising for us as a result. We shall acquire sole ownership or co-ownership of the newly manufactured item in the ratio of the value of the reserved goods delivered by us (invoice value incl. VAT) to the third-party goods and services used. This shall also apply analogously if we lose our ownership of the goods subject to retention of title by combining or mixing them. In this case, it is agreed that the ownership of the other contracting party to the uniform object shall pass to us to the extent of the value of the reserved goods. The other party to the contract shall keep our (co-) ownership free of charge.

9.3 The other party to the contract is entitled to process the reserved goods in the ordinary course of business and to sell them in its own name as long as it is not in default with regard to one of our claims.

9.4 Pledges and transfers of ownership by way of security are not permitted.

9.5 The claim arising from the resale or any other legal reason with regard to the goods subject to retention of title is already now assigned to us in full by the other party to the contract as security.

9.6 We oblige to release, at our discretion, the goods delivered under retention of title or the claims assigned in advance at the request of the other party to the contract if their value exceeds our total claim by more than 20 %.

9.7 If the goods are seized or pledged at the other contracting party, the latter must point out our ownership and inform us immediately. If intervention proceedings become necessary as a result, the other party to the contract shall bear all costs arising therefrom.

9.8 If the other party to the contract breaches the contract, we shall have the right to seize the goods subject to retention of title at the expense of the other party to the contract. The seizure does not constitute a withdrawal from the contract, unless the Consumer Credit Act applies.

9.9 The other party to the contract does not acquire ownership of the software supplied, but only rights of use. The right to use the delivered software shall only arise after full payment of the license fee. We reserve the right to revoke the right of use at any time in the event that the other party to the contract fails to make timely or complete payments under the license agreement or a maintenance agreement or misuses the software. Misuse shall be deemed to have occurred in particular if unauthorized duplicates are made or the software is passed on to third parties without authorization.

10.1 We guarantee that the goods have the properties warranted in the text of the contract and are not afflicted with defects which nullify or reduce the value or suitability for the normal use or the use assumed under the contract. An insignificant reduction in value or suitability shall not be taken into consideration.

10.2 The warranty period is 6 months. It begins on the day of the transfer of risk or, if the goods are installed by us, on the day of operational readiness.

10.3 If the transaction is a commercial transaction for the other party to the contract, the latter shall inspect the goods for completeness and visible defects immediately after receipt. Any complaints due to defects of this kind must be made immediately, at the latest within one week after receipt of the goods. Hidden defects which appear later shall be reported immediately after their discovery. In the event of late notification, the goods shall be deemed to have been approved in accordance with the contract and warranty claims on account of these defects shall be excluded.

10.4 However, a warranty obligation only exists if the defect is not based on the fact that

• the goods have been used in a way that deviates from our operating instructions, materials have been used in the use of the goods which do not comply with our specifications,
• additions have been made to the goods which have not been supplied by us or are not compatible,
• improper repairs or modifications have been carried out by third parties.10.5 If the notice of defect is justified and has been submitted in due time, we shall have the right, at our discretion, to repair the defective goods or to supply a replacement. We shall commence work on rectifying the defect without delay or provide a replacement without delay, at the latest 36 hours after receipt of the notice of defect. Defects which are reported before the expiry of the warranty period shall be remedied by us at our own expense. If an inspection reveals that there is no defect, a reasonable reimbursement of expenses may be demanded.

10.6 If the goods are taken back by us, irrespective of the reason, the other party to the contract must make the original packaging available for this purpose. If this is not possible, he shall pay an expense allowance of 5 % of the value of the goods, but no more than € 25.

10.7 If the subject of the contract is the provision of a consultancy service, the following shall apply in deviation from the above provisions:
If the implementation of developed work objectives is not the direct subject matter of the contract, inPuncto’s warranty shall be limited to the fulfilment and achievement of the concrete content of the order. The warranty extends to the application of the greatest possible care as well as to compliance with the recognized rules of technology. The warranty period is 6 months and begins with the delivery of the order result.

11.1 Any liability on our part is explicitly limited to the cases listed below:

• damage caused intentionally or by gross negligence,
• damage to essential legal interests (life, health)
• insurable damage, unless the other party to the contract can reasonably be expected to conclude a corresponding insurance policy,
• damages due to breach of contractual cardinal obligations,
• claims for damages on the basis of §§ 463, 480 para. 2, 635 BGB
• due to the absence of a warranted characteristic. Apart from that, any liability – based on contractual as well as non-contractual bases for claims – is excluded.

11.2 Our liability shall expire in the event of interventions by the other party to the contract in the software supplied by us.

11.3 Liability is limited in any case, unless the damage was caused intentionally or through gross negligence by our legal representatives or executives. Insofar as a limitation of liability is permissible, our liability for damages shall be limited to contract-typical personal injury foreseeable by us to € 3 million, property damage and financial loss to € 300,000, for unforeseeable damage attributable to the sphere of control and risk of the other party to the contract and for consequential harm caused by a defect, we shall explicitly not be liable.

The other party to the contract is not permitted to change or remove our protected trademarks, serial numbers and type designations associated with the goods, nor to equip and sell the purchased goods or delivered goods with another trademark. Prior to sale, the goods may not be modified either technically or in terms of equipment, design or packaging.

The other party to the contract may only assign its rights under the contract with our written consent.

14.1 The proprietary rights notices – including those of third parties – affixed to the program carrier or the packaging or enclosed with the software must be observed.

14.2 The other party to the contract acquires only a simple right of use to the software contained on the program carrier handed over. This may only be copied – to the extent of compelling technical necessity – for the purpose of backup and installation; use in a network requires separate permission.

14.3 The decompilation or disassembly of the contractual software (reverse engineering) is not permitted. On the basis of a separate agreement, we shall provide the other party to the contract with information for establishing the interoperability of the software which is the subject matter of the contract with other programs at a charge. When using this information, the other party to the contract must observe the restrictions prescribed in Section 69 e (2) of the Copyright Act.

The exclusive place of jurisdiction for fully qualified merchants within the meaning of the German Commercial Code, for legal entities under public law and for special funds under public law is the competent court at the registered office of inPuncto. The same applies if

• the other party to the contract has no general place of jurisdiction in Germany,
• the other party to the contract moves its place of residence or habitual residence out of the territory of the Federal Republic of Germany after the conclusion of the contract or this place of residence is not known at the time the suit is filed.

Should individual provisions of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions. The ineffective provision shall be replaced by a substitute provision which comes as close as possible to the purpose pursued by the ineffective provision.