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terms

§ 1 Scope of application

For all contracts concluded by us with a customer concerning our deliveries and services as well as for pre-contractual obligations in this regard, these General Terms and Conditions (GTC) shall apply exclusively in business dealings, unless otherwise expressly agreed in writing. Other terms and conditions shall not become part of the contract, even if we do not expressly object to them. This shall also apply if we render our services to the customer without reservation in the knowledge of conflicting or deviating conditions or if we refer to them in individual correspondence.

Even if no further reference is made to this when concluding similar contracts when current business relations exist, our General Terms and Conditions shall apply exclusively in the version that can be called up by the customer at www.ref-center.com/agb when commissioned to do so, unless the contracting parties agree otherwise in writing. Upon request, the current version of the GTC shall also be sent to the customer free of charge in printed form.

These GTC only apply to entrepreneurs, legal entities under public law or special funds under public law as defined in § 310 Para. 1 BGB (German Civil Code).

§ 2 Contract Conclusion

Our offers are subject to confirmation and non-binding, unless the offer is designated as bind in writing. The customer shall be bound for three weeks by declarations to conclude contracts (contractual offers).

A legal obligation shall only come about through a contract signed by both parties or our written order confirmation, and also through the fact that we begin to provide services in accordance with the contract. We can demand written confirmations of verbal contract declarations by the customer.

§ 3 Subject matter of contract

The scope, type and quality of the deliveries and services shall be determined by the contract signed by both parties or our order confirmation, otherwise by our offer. Other information or requirements shall only become part of the contract if the contracting parties agree to this in writing or if we have confirmed it in writing. Subsequent changes to the scope of services require a written agreement or our express written confirmation.

Product descriptions, representations and technical data are performance descriptions, but no guarantees. A guarantee requires an explicit written declaration.

We reserve the right to make minor changes to services if these are insignificant changes to services that are reasonable to the customer. In particular, normal traces of use are to be accepted by the customer. This shall also apply if the customer refers to brochures, drawings or illustrations in his order, unless expressly agreed as binding quality.

§ 4 Time for performance, delays, partial performance, place of performance

Information on delivery and performance dates are non-binding unless we have designated them as binding in writing. All delivery and performance periods are subject to the correct and timely delivery of goods by our suppliers. Delivery periods begin with the dispatch of the order confirmation by us, but not before all commercial and technical questions between the customer and us have been clarified and the customer has fulfilled all obligations incumbent upon him (e.g. provision of necessary official approvals, releases or performance of agreed down payments).

Delivery and performance periods shall be extended by the period in which the customer is in default of payment under the contract, by the period in which we are prevented from delivering or performing due to circumstances for which we are not responsible, and by a reasonable start-up period after the end of the impediment. These circumstances also include force majeure, delays by our suppliers and industrial disputes. Deadlines shall also be deemed extended by the period in which the customer does not provide a cooperation service in breach of contract, e.g. does not provide information, does not create access, does not supply a provision or does not make employees available.

If the contracting parties subsequently agree on other or additional services that affect agreed deadlines, these deadlines shall be extended by an appropriate period.

Reminders and deadlines set by the customer must be in writing in order to be effective. A grace period must be reasonable. A period of less than two weeks is only reasonable in the case of special urgency.

We may render partial services if the delivered parts can be used reasonably by the customer.

Agreed delivery dates shall be deemed to have been met if the goods have been handed over to the carrier on the agreed delivery date or if we have notified the carrier that the goods are actually ready for dispatch.

If we are not (finally) supplied by our supplier themselves, although we have carefully selected him and the order meets the requirements of our delivery obligation, we shall be entitled to rescind the contract in full or in part with respect to the customer if we notify the customer of our non-supply and - to the extent permissible - offer to assign to the customer the claims to which we are entitled against the supplier.

The place of performance for training courses and consulting services shall be the place where the training or consulting is to be provided. Otherwise, our registered office shall be the place of performance.

§ 5 Packaging, Shipping, Transfer of Risk, Insurance

Our deliveries shall be packed at the customer's expense in a manner customary in the trade.

The risk shall pass to the customer as soon as the product has left our company or distribution warehouse. This also applies to partial deliveries, deliveries within the scope of subsequent performance as well as if we assume further services, such as in particular shipping costs or delivery. If a contract for work and services requires acceptance, the risk shall pass upon acceptance.

We shall select the mode of dispatch, the carrier and the transport route, unless we have received written instructions from the customer. In this selection we shall only be liable for intent or gross negligence.

At the express request of the customer, the delivery shall be insured at the customer's expense against the risks specified by the customer - insofar as this is reasonably possible for us.

§ 6 Prices, renumeration, payment, offsetting

Unless otherwise agreed by the contracting parties, all prices shall apply ex our registered office. All prices and remunerations are net prices plus the respectively applicable statutory value added tax and any other statutory levies in the country of delivery as well as plus travel costs, expenses, packaging, shipping and, if applicable transport insurance. Additional services requested by the customer will be invoiced on a time and material basis.

Unless the contracting parties have agreed otherwise, payments are due immediately after performance and receipt of the invoice by the customer without deduction and are payable within 10 days, provided that a sufficient credit limit of the commercial credit insurer is available. If the credit limit is not sufficient, we are entitled to demand payment in advance or payment via a trustee service (Paypal etc.) at our discretion.

Bills of exchange and cheques are generally not accepted, otherwise only on account of payment.

In the event of default in payment, the customer shall pay interest at the rate of eight percentage points above the base interest rate applicable at the time. This shall not affect the right to assert any further damage caused by default.

If the default of the customer lasts longer than 30 calendar days, if he has bills of exchange or cheques protested or if an application is made for the opening of insolvency proceedings against his assets or a comparable proceeding under another legal system, we shall be entitled to declare all claims against the customer immediately due and payable, to withhold all deliveries and services and to assert all rights from retention of title.

The customer may only set off claims which are undisputed by us or which have been determined to be final and absolute by a court of law. Except within the scope of § 354a HGB (German Commercial Code), the customer may only assign claims arising from this contract to third parties with our prior written consent, which may not be unreasonably withheld. The customer shall only be entitled to a right of retention or the defence of non-performance of the contract within the respective contractual relationship.

We reserve the right (if the goods or services are not to be delivered or rendered within four months after conclusion of the contract) to increase our prices accordingly if cost increases occur after conclusion of the contract, in particular due to collective wage agreements and material price increases. We will prove these to the customer upon request.

In the case of a purchase price in a foreign currency, the customer shall bear the risk of a deterioration in the exchange ratio of the currency against the Euro for the period from the conclusion of the contract.

§ 7 Reservation of ownership

Our services shall remain our property until full payment of all claims to which we are entitled from the business relationship with the customer. The claims also include cheque and bill of exchange claims as well as current account claims.

The customer is obliged to treat the goods subject to retention of title with care for the duration of the retention of title. In particular, he is obliged to insure the goods at his own expense against fire, water and theft at replacement value. The customer hereby assigns to us all compensation claims arising from this insurance. We hereby accept the assignment. If an assignment should not be permissible, the customer hereby irrevocably instructs his insurer to make any payments only to us. Further claims by us remain unaffected. Upon request, the customer shall provide us with evidence of the conclusion of the insurance policy.

The customer shall only be permitted to sell the goods subject to retention of title in the ordinary course of business. The customer is not entitled to pledge the goods subject to retention of title, to assign them by way of security or to make other dispositions which endanger our property. In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing and provide all necessary information, inform the third party of our ownership rights and cooperate in our measures to protect the goods subject to retention of title. The customer shall bear all costs for which he is responsible and which must be incurred in order to cancel the access and to recover the goods, insofar as they cannot be collected from the third party.

The customer hereby assigns to us the claims from the resale of the goods with all ancillary rights, irrespective of whether the goods subject to retention of title are resold without or after processing. We hereby accept this assignment. If an assignment should not be permissible, the customer hereby irrevocably instructs the third-party debtor to make any payments only to us. The customer is revocably authorised to collect the claims assigned to us in trust for us. The collected amounts are to be transferred to us immediately. We may revoke the customer's authorisation to collect and the customer's authorisation to resell if the customer does not properly meet his payment obligations towards us, is in default of payment, ceases payments or if insolvency proceedings are instituted against the customer's assets. A resale of the claims requires our prior consent. The customer's right to collect expires upon notification of the assignment to the third-party debtor. In the event of revocation of the right to collect, we may demand that the customer discloses the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and notifies the debtors of the assignment.

In the event that the customer's claims from the resale are included in a current account, the customer hereby also assigns to us his claim from the current account against his customer in the amount of the purchase price including value added tax agreed for the resold reserved goods.

If we assert our claims pursuant to § 6 para. 5, the customer shall grant us immediate access to the reserved goods, send us an exact list of the existing reserved goods, separate the goods for us and surrender them to us at our request.

The processing or transformation of the goods subject to retention of title by the customer shall always be carried out on our behalf. The customer's expectant right to the goods subject to retention of title shall continue in respect of the processed or transformed item. If the goods are processed, combined or mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivered goods to the other processed items at the time of processing. The customer shall keep the new goods in safe custody for us. For the rest, the same provisions as for the goods subject to retention of title shall apply to the object created by processing or transformation.

At the customer's request, we shall be obliged to release the securities to which he is entitled, insofar as the realisable value for the securities exceeds our claims arising from the business relationship with the customer by more than 10%, taking into account customary valuation discounts. The valuation shall be based on the invoice value of the goods subject to retention of title and the nominal value of claims.

In case of delivery of goods to other legal systems in which the retention of title provision under this paragraph does not have the same security effect as in the Federal Republic of Germany, the customer hereby grants us a corresponding security right. If further declarations or actions are required for this, the customer shall make these declarations and take actions. The customer shall cooperate in all measures which are necessary and conducive to the effectiveness and enforceability of such security rights.

§ 8 Contract binding and contract termination

In the event of a breach of duty on our part, the customer may only terminate the exchange of services prematurely for whatever legal reason (e.g. rescission, claim for damages in lieu of performance, termination for good cause) in addition to the statutory prerequisites under the following conditions: The customer may only terminate the exchange of services in the event of a breach of duty on our part, for whatever legal reason (e.g. rescission, claim for damages in lieu of performance, termination for good cause) in addition to the statutory prerequisites under the following conditions:

a) The breach of contract must be objected to in writing. The removal of the disturbance is to be demanded with setting of a deadline. In addition, it is to be threatened that after the unsuccessful expiry of this period no further services will be accepted with regard to the fault complained of and that the exchange of services will thus be partially or completely terminated.

b) The deadline for remedying the disturbance must be reasonable. A period of less than two weeks is only reasonable in the case of particular urgency. In the event of serious and final refusal to perform or under the other statutory conditions (§ 323 para. 2 BGB), the setting of a time limit may be waived.

c) The termination of the exchange of services (in whole or in part) due to the failure to remedy the disruption can only be declared within three weeks after expiry of this period. The period shall be suspended for the duration of negotiations.

The customer may only demand the rescission of the contract due to a delay in performance if we are solely or predominantly responsible for the delay, unless the customer cannot reasonably be expected to adhere to the contract due to the delay due to a weighing of interests.

All declarations in this context must be made in writing for order to be effective.

Termination in accordance with § 649 BGB (German Civil Code) shall remain permissible in accordance with the statutory provisions.

We may terminate the contractual relationship with immediate effect if the customer has made incorrect statements about the facts determining his creditworthiness or has finally suspended payments, or if proceedings have been instituted against him to make an affidavit unnder oath, or if insolvency proceedings or comparable proceedings under another legal system have been instituted against his assets, or if an application has been made for such proceedings to be instituted, unless the customer immediately pays in advance.

§ 9 General obligations of the customer

The customer is obliged to have all our deliveries and services as per § 1 para. 1 inspected by a competent employee immediately upon delivery or provision or upon making them accessible in accordance with the provisions of commercial law (§ 377 German Commercial Code) and to give notice of recognizable and/or recognized defects immediately in writing with a precise description of the defect.

The customer acknowledges that we are dependent on the comprehensive cooperation of the customer for the successful and timely execution of deliveries and services owed by us. He therefore undertakes to provide all information required for the proper performance of services in a timely and complete manner.

The customer undertakes to thoroughly test our deliveries and services for usability in the specific application before commencing productive use and to carry out a functional test before delivering his products to his customer. This also applies to software and other delivery items which the customer receives free of charge as an addition, within the scope of the warranty or a maintenance contract.

The customer must save data which may be affected, negatively influenced or endangered by our services in machine-readable form at intervals appropriate to the application and thus ensure that they can be restored with reasonable effort.

The customer shall take appropriate precautions in the event that we do not perform our deliveries and services properly in whole or in part (e.g. by data backup, fault diagnosis, regular testing of the results, emergency planning).

§ 10 Use restrictions, exemption

Unless otherwise expressly agreed in writing, our services (in particular goods or software purchased or programmed by us) are not intended for use in life-sustaining or life-supporting devices and systems, nuclear facilities, military purposes, aerospace or for any other purpose in which a failure of the product could reasonably be expected to endanger life or cause catastrophic consequential damage.

If the customer violates paragraph 1, this shall be at the customer's own risk and sole responsibility. The customer hereby indemnifies us and the respective manufacturer against all liability arising from the use of goods in such contexts to the full extent at first request, including the costs of reasonable legal defence.

§ 11 quality defects

Our services have the agreed quality and are suitable for the contractually presumed, in the absence of an agreement for normal use. Without express agreement to the contrary, our services shall only be free of defects in accordance with the state of the art. The customer is exclusively responsible for the suitability and safety of our services for a customer application. An insignificant reduction of the quality remains unconsidered.

We guarantee that the delivered goods have the characteristics specified in writing by the manufacturer or by mutual agreement in testable technical parameters. The delivered goods are only intended for the purposes specified by us or the respective manufacturer. The agreed quality according to § 434 BGB is exclusively the specifications of the respective manufacturer.

Warranty is excluded:

if our products are not properly stored, installed, commissioned or used by the customer or third parties,
with natural wear and tear,
in case of improper maintenance,
when using unsuitable equipment,
damage caused by repairs or other work carried out by third parties which has not been expressly approved by us.

The burden of presentation and proof with regard to the non-existence of these reasons for exclusion lies with the customer.

The customer's warranty rights further require that he has duly fulfilled his notification and inspection obligations in accordance with § 9 para. 1 and has notified hidden defects in writing immediately after discovery.

In the event of material defects, we may remedy them first. Subsequent performance shall be effected at our discretion by remedying the defect, by delivering goods or rendering services that do not have the defect, or by showing ways of avoiding the effects of the defect. Due to a defect, at least two attempts at rectification must be accepted. An equivalent new product version or the equivalent previous product version which does not exhibit the defect shall be accepted by the customer as subsequent performance if this is reasonable for him.

The customer shall support us in error analysis and defect rectification by specifically describing any problems that arise, providing us with comprehensive information and granting us the time and opportunity required to rectify the defect.

If we incur additional costs as a result of our services being altered or incorrectly operated, we may demand that they be replaced. We may demand reimbursement of expenses if no defect is found. The burden of proof lies with the customer. § 254 BGB applies accordingly. If the expenses required for the purpose of remedying the defect increase, in particular transport, travel, labour and material costs, we shall not bear these if the expenses increase due to the fact that the delivery item was subsequently taken by the customer to a location other than the delivery address, unless the transfer corresponds to its contractual and intended use. Personnel and material costs claimed by the customer due to the defectiveness of our services shall be charged on a cost price basis.

If we finally refuse subsequent performance or if this finally fails or is unreasonable for the customer, he can either withdraw from the contract or reduce the remuneration appropriately within the framework of the statutory provisions in accordance with the provisions of § 9 and additionally demand compensation or reimbursement of expenses in accordance with § 14 if we are at fault. The claims become statute-barred according to § 14.

§ 12 Legal defects

Unless otherwise agreed, we are obliged to render our services free of industrial property rights and copyrights of third parties (hereinafter referred to as "property rights") only in the country of the place of delivery. If a third party asserts justified claims against the customer due to the infringement of industrial property rights by services provided by us and used in accordance with the contract, we shall be liable to the customer within the period specified in § 14 as follows:

At our discretion and at our expense, we shall either obtain a right of use for the services concerned, modify them in such a way that the property right is not infringed, or exchange them. If this is not possible for us under reasonable conditions, the customer shall be entitled to the statutory rights of rescission or reduction. The customer may not demand compensation for futile expenses.

Our obligation to pay damages shall be governed by § 13 within the framework of the statutory provisions.

Our aforementioned obligations only exist if the customer immediately notifies us in writing of the claims asserted by the third party, does not acknowledge an infringement and all defensive measures and settlement negotiations are reserved to us. If the customer ceases to use the delivery for reasons of damage reduction or other important reasons, he shall be obliged to point out to the third party that the cessation of use does not imply any acknowledgement of an infringement of property rights.

Claims of the customer are excluded, insofar as he is responsible for the infringement of the property right. Claims of the customer shall also be excluded if the infringement of property rights is caused by special specifications of the customer, by an application not foreseeable by us or by the delivery being modified by the customer or being used together with products not supplied by us.

Otherwise, the provisions of § 12 shall apply mutatis mutandis.

Further or other claims of the customer against us and our vicarious agents than those regulated here due to a defect in title and are excluded.

§ 13 Liability

We shall pay damages or compensation for futile expenses, irrespective of the legal basis (e.g. from contractual or similar obligations, material defects and defects in title, breach of duty and tort) only in the event of fault on our part and to the following extent:

a) The liability in case of intent as well as from guarantee is unlimited.

b) In the event of gross negligence, we shall be liable to the extent of the typical and foreseeable damage.

c) In other cases we shall only be liable in the event of breach of a material contractual obligation, in the event of claims based on defects and in the event of default, for compensation for typical and foreseeable damage.

d) Liability in this respect shall be limited to twice the agreed remuneration of the order/part of the contract affected by the damage.

According to case law, essential contractual obligations (cardinal obligations) are those obligations the fulfilment of which is essential for the proper execution of the contract and on the observance of which the contractual partner regularly relies and may rely.

In the event of injury to life, limb and health and in the event of claims arising from the Product Liability Act, only the statutory provisions shall apply.

The objection of contributory negligence remains open to us.

§ 14 Statute of limitation

The limitation period shall be

a) for claims arising from repayment of the purchase price and withdrawal or reduction 1 year from delivery of the goods; provided, however, that these claims are based on defects duly notified within a period of no statute of limitations, not less than 3 months from submission of the effective declaration of withdrawal or reduction;

b) 1 year in the case of other claims arising from material defects, commencing from delivery of the goods;

c) 1 year for claims arising from defects of title. If the defect in title consists in a right in rem of a third party on the basis of which the goods can be demanded out, the statutory limitation periods shall apply;

d) in the case of other claims for damages or reimbursement of futile expenses, 2 years, beginning from the time at which the customer became aware of the circumstances giving rise to the claim or had to become aware without gross negligence.

The statute of limitations shall commence at the latest upon expiry of the statutory maximum periods (§ 199 para. 3, para. 4 BGB).

In the event of damages and reimbursement of expenses due to intent, gross negligence, warranty, fraudulent intent as well as in the event of injury to life, limb and health and in the event of claims arising from the Product Liability Act, the statutory limitation periods shall always apply.

§ 15 Exportation

Our services are generally intended to remain in the country of delivery agreed with the customer. The re-export of contractual products may require the customer's approval. In particular, they are subject to German, European and American export controls and embargo regulations. The customer must independently inquire about these regulations with the responsible authorities. We assume no liability for export permissibility and suitability.

In any case, it is the responsibility of the customer, on his own responsibility, to obtain the necessary permits from the relevant foreign trade authorities before exporting such products. Any further delivery of contractual products by the customer to third parties, with or without our knowledge, shall at the same time require the transfer of the export permit conditions. The customer is liable to us for the proper observance of these conditions.

§ 16 Confidentiality, data protection, manufacturer report

The contracting parties undertake to treat as confidential all objects (documents, information, software) which they receive or become aware of before or during the execution of the contract from the respective other contracting party and which are legally protected or obviously contain business or trade secrets or are marked as confidential, even beyond the end of the contract, unless they are publicly known without violation of the obligation to maintain secrecy or there is no legally protectable interest of the contracting party. The contractual partners shall store and secure these items in such a way that misuse by third parties is excluded.

The contractual partners shall make the contractual items accessible only to employees and other third parties who require access for the performance of their official duties. He shall inform these persons of the need to maintain secrecy with regard to these objects.

We process the data of the customer required for the business transaction in compliance with the data protection regulations.

§ 17 EU Turnover tax on imports

Insofar as the customer is domiciled outside Germany, he is obliged to comply with the European Union import turnover tax regulations. This includes in particular the disclosure of the value added tax identification number and, if applicable, its change to us without a separate inquiry. On request, the customer is obliged to provide us with the necessary information regarding his capacity as entrepreneur, the use and transport of the delivered goods as well as the statistical reporting obligation.

Furthermore, the customer shall be obliged to reimburse us for the expenses and costs incurred by us due to omitted or defective information on the import turnover tax.

Any liability on our part arising from the consequences of the customer's information on the import turnover tax or the relevant data is excluded, unless gross negligence or intent on our part exists. We are not obliged to check any customer information in this regard.

§ 18 Social clause

In determining the amount of any compensation claim to be fulfilled by us arising from or in connection with this contract, our economic circumstances, type, scope and duration of the business relationship, any causation and/or fault contributions of the customer and a particularly unfavourable installation situation of the goods shall be reasonably taken into account in our favour. In particular, the compensation, costs and expenses which we are to bear must be in reasonable proportion to the value of the supplied part.

§ 19 Schriftform

All changes and additions to the contract must be made in writing to be effective. The contracting parties shall also satisfy this requirement by sending documents in text form, in particular by fax or e-mail, unless otherwise specified for individual declarations. The written form agreement itself can only be cancelled in writing.

§ 20 Choice of law

The law of the Federal Republic of Germany applies.

§ 21 Legal venue

The place of jurisdiction for all disputes arising from and in connection with this contract shall be Bruchsal, provided that the customer is a merchant, a legal entity under public law or a special fund under public law or if he is treated as such or if he has his registered office or branch abroad. We shall also be entitled to institute legal proceedings at the customer's place of business and at any other admissible place of jurisdiction.

§ 22 Severability clause

Should any provision of these GTC be or become invalid or should these GTC be incomplete, this shall not affect the validity of the remaining provisions. The contracting parties shall replace the ineffective provision with a provision that comes closest to the meaning and purpose of the ineffective provision in a legally effective manner. The same applies to any loopholes in the contract.

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