General Business and Delivery Conditions of antauris AG
Section 1: General provisions and scope of applicability
These business conditions apply to all legal transactions between antauris AG, Moorfuhrtweg 17, 22301 Hamburg and the Principal, both in Germany and abroad. They apply to both existing and future business relationships, even if they are not explicitly agreed to again. Any general business conditions of the Principal are expressly excluded from the contract, even if they are not explicitly objected to by antauris AG.
If the Principal does not wish the following General Business and Delivery Conditions to apply, it must notify antauris AG to that effect in advance in writing. Any deviations from these General Business and Delivery Conditions shall only be effective with antauris AG’s written confirmation.
Section 2: Drawing up offers and the conclusion of the contract
Offers prepared by antauris AG are non-binding and subject to confirmation. The information provided in data sheets, advertisements and prospectuses is not binding and does not constitute any assurance of a product’s properties.
The contract under these terms and conditions is first concluded upon both Parties signing a contract document based thereon, a verbal declaration or a declaration in text form or in writing of the Principal stating that it accepts an offer of antauris AG or an order confirmation sent by antauris AG to the Principal.
If an order confirmation has not been sent, the order can also be accepted by implication by rendering the performance.
Section 3: Prices and payment terms
All prices and price information should be understood to be net prices, subject to the addition of the currently applicable statutory VAT. If the order includes the delivery of goods, prices shall be considered to be ex the Hamburg warehouse, unpacked, uninsured and customs duty unpaid.
If the Principal is late in making payment, antauris AG shall have the right to charge interest in the amount of 8 percentage points over the current base interest rate.
Section 4: Delivery and delivery times
Delivery deadlines and time limits are not binding, unless this is explicitly agreed in writing in a particular case. Delivery shall only be made if sufficient stocks are available. A new delivery deadline shall be agreed if, after the order is placed, changes or additions to the order are demanded by the Principal. If other circumstances occur which make it impossible for antauris AG to comply with the delivery deadline and antauris AG is not responsible therefore, the delivery deadline shall be postponed by a reasonable period of time.
If antauris AG is prevented from fulfilling the order on time, for example by disruptions to procurement, production or delivery affecting either it or its upstream suppliers, the general legal principles shall apply, with the proviso that after one month has elapsed the Principal will be able to set an additional time limit of four weeks. If a binding delivery deadline has not been met due to mobilisation, war, riots, strikes or lock-outs or due to other circumstances for which antauris is not responsible according to general legal principles, and this can be proved, the delivery term shall be appropriately extended.
If, once the extended delivery term has elapsed, the Principal sets a reasonable additional time limit for antauris AG and antauris AG fails to make delivery within the additional time limit, the Principal will be able to rescind the contract. The rescission declaration must be in writing. If the performance of the contract is partially or entirely impossible for antauris AG for the above-mentioned reasons, it shall be released from its obligation to make delivery.
antauris AG has the right to make partial deliveries to the extent that this is reasonable for the Principal.
Delivery shall be deemed to have been made once the goods are ready for shipment or have been delivered to the carrier at the agreed time.
Section 5: Shipping the goods and the transfer of risk
The goods shall always be shipped ex antauris AG’s warehouse for the Principal’s account and at its risk.
The costs incurred on shipping, packing and insurance shall be passed on to the Principal. If the Principal requests a particular type of shipment, it shall also bear the resulting additional costs.
If the shipment or collection of the goods is delayed at the Principal"s request or for reasons for which it is responsible, the risk shall transfer to it as soon as antauris AG has made the sold goods ready for shipment or collection.
Section 6: Warranty for hardware
antauris AG warrants that the goods are free from defects which annul or reduce their value or fitness for their usual use or the use assumed under the contract.
antauris AG and the Principal agree that the statements and descriptions set out in the manual and/or in the price-list do not constitute an assurance of particular properties.
Any claims of the Principal due to defects in the goods are subject to the condition that it has properly fulfilled its inspection and complaint obligations provided for in Article 377 of the German Commercial Code (HGB). Any complaints must be submitted in writing within 14 days from the delivery of the goods. The Principal must immediately notify antauris AG in writing of any defects that emerge during the warranty period.
The warranty period amounts to 12 months and shall begin on the date of delivery. The warranty is excluded for defects and/or damage which are attributable to normal wear and tear due to use, external influences or operating errors. These include, for example, inappropriate use, operation with the wrong type or electricity or voltage or connection to inappropriate electricity sources, fire, lightning, explosions or excess voltage resulting from the grid, moisture of any kind or incorrect or defective programmes, software and/or processing data.
The warranty shall be void if the Principal or a third party commissioned by it makes changes to devices, elements or addi-tional equipment or carries out repairs to the goods without antauris AG’s consent. This shall not apply if the Principal provides full proof that the reported defects were not partially or entirely caused by such changes or repair work and that the elimination of the defects will not be hampered by the change or repair work.
If the complaints are justified and have been submitted in good time, the Principal shall set antauris AG a reasonable time limit of at least four weeks for supplementary performance. The Principal shall notify antauris AG whether it would like the defective goods to be repaired or to have new, defect-free goods delivered as the supplementary performance. However, antauris AG shall have the right to refuse the selected supplementary performance if it can only be carried out with excessive costs and if the other kind of supplementary performance would not involve any significant disadvantages for the Principal. antauris AG can refuse the supplementary performance entirely if it can only be carried out with disproportionately high costs.
antauris AG shall be entitled to three attempts at rendering the supplementary performance for the same defect or for defects which are directly related to each other, within the time limit set by the Principal. After the third unsuccessful attempt at supplementary performance, the Principal shall have the right to rescind the contract or demand a price reduction. The right of rescission or to a price reduction can be exercised after the first unsuccessful attempt at supplementary performance if the Principal cannot be reasonably expected to make a second attempt within the time limit set. If antauris AG has refused the supplementary performance under the above-mentioned conditions, the Principal shall immediately have a right of rescission or to a price reduction.
Rescission due to insignificant defects is excluded.
The Principal shall compensate antauris AG for any expenses it incurs as a result of the Principal asserting warranty claims against it when no defect exists or when antauris AG is not subject to a warranty obligation.
Section 7: Consulting, installation, conception, administration, support and technical services and other IT services
antauris AG has the right to provide the above-mentioned services either partially or entirely through employees or subcontractors. It shall ensure that the persons commissioned to fulfil the order are appropriately qualified for that purpose.
If intellectual property rights of any kind whatsoever arise in the course of the fulfilment of the order, antauris AG shall be entitled to those rights. However, antauris AG grants the Principal a non-exclusive license to such intellectual property rights without any time limitation and free of charge. The transfer of such rights to third parties shall require antauris AG’s consent.
The Principal is itself fully responsible for backup, unless otherwise agreed in writing.
The Principal must fulfil all the requirements necessary for the performances to be rendered. In particular, in the event of installations by antauris AG the Principal shall provide the necessary installation environment for a reasonable period of time. The installation work shall be deemed to have been completed if all the key functions of the commissioned work can be run without reservations during a final test.
Section 8: Liability
antauris AG shall be liable for wilful misconduct or gross negligence in accordance with the provisions of law. In the event of simple negligence, antauris AG shall only be liable if a significant contractual obligation (Kardinalspflicht) has been breached or in the event of a default or impossibility of performance. In the event of liability resulting from simple negligence, that liability shall be limited to foreseeable or typical damage. In the event of loss of data, antauris AG’s liability shall be limited to the amount of the outlays necessary to restore the data assuming that back-up copies exist. Any liability for the absence of guaranteed properties or due to fraud, personal injury, defects of title or under the German Product Liability Act (Produkthaftungsgesetz) or the Federal Data Protection Act (Bundesdatenschutzgesetz) remains unaffected.
If legal action is taken against antauris AG with respect to warranty or liability, contributory negligence of the customer shall be appropriately taken into account, particularly in the event of inadequate error reports or inadequate backup. Inadequate backup shall be deemed to exist, in particular, if the Principal failed to take reasonable precautions (based on the latest technology available) against external events, particularly against computer viruses or other phenomena which could jeopardise individual data or an entire database.
Section 9: Retention of title
The goods delivered by antauris AG shall remain its property until the full settlement of all principal and subsidiary amounts receivable resulting from the business relationship between antauris AG and the Principal.
The Principal is obliged to properly insure the items subject to retention of title by antauris AG (i.e. insurance against theft, fire and water damage and low-voltage damage) and to provide proof of such insurance to antauris AG at its request. In the event of damage, the customer’s insurance claim shall be deemed to have been assigned to antauris AG.
The Principal shall have the right to resell goods subject to retention of title of antauris AG in the course of normal business operations. For the purpose of providing security, the Principal assigns to antauris AG already now the receivables against third parties that arise from such resale. That assignment is limited to the amount invoiced by antauris AG including VAT.
The Principal retains the right to collect the assigned receivables. If the Principal fails to properly fulfil its payment obliga-tions, it shall notify antauris AG of the assigned receivables and their debtors and provide it with all the information necessary to assert those rights and perform all the necessary cooperative acts. At antauris AG’s request, the Principal shall notify the relevant third-party debtors of the assignment of the receivables.
The assignment of receivables to antauris AG for the purpose of providing security also covers receivables that the Principal acquires against third parties as a result of the goods subject to retention of title of antauris AG being connected to real property. This assignment as security also applies to claims against third parties as a result of processing, combining or mixing the goods subject to retention of ownership. If the goods subject to retention of title are combined or mixed with other goods which are not antauris AG’s property, antauris AG shall be entitled to a co-ownership share to the resulting item according to the ratio of the value of the order for the goods subject to retention of title to the value of the new item as at the moment of the combining or mixing.
The Parties agree already now that if the Principal acquires sole ownership of a new item due to combining, mixing or processing, antauris AG shall be the co-owner of the new item according to the ratio of the order value to the value of the new item. The Principal shall be obliged to disclose to antauris AG any time it makes a request to that effect the documents necessary to calculate its co ownership share. It is agreed already now that the Principal shall also safeguard antauris AG’s co-ownership share in the new item, free of charge.
In the event of attachments or seizures, the Principal shall immediately notify antauris AG in writing and shall also immediately notify third parties of antauris AG’s retention of title in an appropriate form.
Without prejudice to other rights, antauris AG will be able to demand the immediate surrender of the goods subject to retention of title if it has effectively rescinded the contract.
The Parties are mutually obliged to refrain from passing on or otherwise making available to third parties any information or documents of the other Party which are made available to it in the course of the implementation and handling of the business relationship and are explicitly marked confidential. Companies which are affiliated with antauris AG are not deemed to be third parties within the meaning of this provision.
antauris AG shall only collect, process and use personal data of the Principal without further consent to the extent that this is required to conclude and perform the contract or for settlement purposes.
Section 11: Set-off right/right of retention
The Principal can only carry out a set off receivables of antauris AG with counterclaims stemming from the same contractual relationship and against receivables which are undisputed or have been established with legally binding effect.
The Principal shall only be entitled to assert a right of retention in connection with counterclaims stemming from the same contractual relationship. Moreover the Principal can only assert a right of retention if receivables exist which are undisputed or have been established with legally binding effect.
Section 12: Applicable law and place of jurisdiction
The business relationship between the Principal and antauris AG is exclusively subject to the laws of the Federal Republic of Germany applicable to domestic contracting parties. The applicability of the UN Convention on Contracts for the International Sale of Goods is excluded.
The place of jurisdiction for all legal disputes that directly or indirectly stem from the contractual relationship is Hamburg, provided it is permitted by and compatible with the law. However, antauris AG has the right to take legal action in any other statutory place of jurisdiction.
Section 13: Severability clause
Should a provision of these General Business and Delivery Conditions be or become void, ineffective or unenforceable, in part or in whole, the effectiveness and enforceability of all the other provisions hereof shall not be affected. Provided it is permitted by law, the void, ineffective or unenforceable provision shall be deemed to have been replaced with an effective and enforceable provision which comes closest to the commercial purpose of the void, ineffective or unenforceable provision with regard to subject, extent, time, location and scope of applicability.