(1) The following General Terms and Conditions (hereinafter known as the “Terms”) apply to all transactions between LEiTEK Informations- und Automatisierungstechnik GmbH (hereinafter known as “LEiTEK”) and the respective party to the contract (hereinafter known as “Customer”). These Terms of Sale also apply to all future transactions with the Customer, if they are legal transactions of a similar kind. This means that all the Services provided by LEiTEK will be provided subject to these Terms, in particular the supply of hardware and components, the production and delivery of software and applications and the programming of programmable logic controllers (hereinafter known as “Services”).
(2) The Terms are available for inspection at the headquarters of LEiTEK. At the same time, the Terms can be viewed and retrieved on LEiTEK’s website (www.leitek.de), especially so that they can be downloaded. The Customer can ask to get the Terms of LEiTEK in writing. When signing a contract with LEiTEK, the Customer confirms that he has had a reasonable chance to take note of the contents of the TERMS. With his signature, but at the latest when he receives the goods or services, the Customer acknowledges that the Terms form a valid basis for the contract.
2. Offer and offer documents
(1) All contracts will become valid only after LEiTEK has confirmed them. Until then, LEiTEK’s offers will remain non-binding. The details and information contained in the offer and the associated documents – in particular, for example, technical specifications, drawings, sketches, pictures, data and specifications – are not binding and can be specified in writing by both parties in a legally binding form after they have consulted each other.
(2) With all offers made by LEiTEK and, in particular, with regard to cost estimates, drawings and other documents, LEiTEK reserves the property and copyright exploitation rights and other rights of use without limitation. After the project has been completed, they may be made available to third parties and/or used by the Customer only after LEiTEK has given written approval to do so.
(3) LEiTEK’s offers (including annexes) will, if the contract is not concluded or if it is terminated early, be returned immediately upon LEiTEK’s request.
3. Customer’s duty to cooperate
(1) All the Customer-specific information and data contained in the offer that later become the subject of the contract must be checked by the Customer before the order is placed. If there are any discrepancies, LEiTEK must be informed in writing before the Customer places the order.
(2) The Customer is required, to check the accuracy of measurements given and the construction drawings, (technological) descriptions, information and documents supplied by him which affect the order and delivery of the Services. The Customer is also responsible for making sure that the use of drawings and documents supplied by him does not violate any patent rights or other property rights of third parties.
(3) The Customer is obliged to safeguard LEiTEK’s Services, especially the software, from being accessed by unauthorised third parties by taking appropriate measures (virus protection, firewall, etc.), and especially to keep the backup copy in a safe place according to Section 10.4.
(4) If a third party asserts claims against the Customer due to a violation of Section 10.7, the Customer must immediately inform LEiTEK of this in full and in writing. Furthermore, without the approval of LEiTEK, the Customer is obliged to not recognize any alleged infringement and to leave any dispute, including any out-of-court settlements, to LEiTEK or to deal with this only in agreement with LEiTEK. LEiTEK will pay the necessary Customer’s lawyers’ fees and court costs caused by the legal defence. If the Customer stops using the Services to reduce damages or for some other good reason, he is obliged to inform the third party that the fact that he has stopped the use does not mean that he acknowledges the alleged infringement.
(5) In order to eliminate defects, if LEiTEK asks for it, the Customer will make available to LEiTEK – to the extent possible and reasonable – the notes and information that are needed to assess and eliminate the defect.
(6) If the export of LEiTEK’s Services is subject to national or international export regulations, the Customer must obtain the permission of the competent authorities for such export. The Customer has to bear the costs of exporting the Services.
(7) Other duties of the Customer are a result of the individual contract and the general duties of care and due diligence. If the duty to cooperate is violated, the Customer bears the resulting risk of damage. LEiTEK is not obliged to check whether the Customer is complying with his duty to cooperate. Nevertheless, LEiTEK is authorised to do so and the Customer is obliged to demonstrate compliance with the duty to cooperate upon request.
(8) The full assistance of the Customer is free of charge.
4. Conclusion of contract
(1) All declarations of intent regarding the contract conclusion that are made by LEiTEK or the Customer will only be valid if they are in writing. Oral statements will become valid only when LEiTEK confirms them in writing.
(2) Even after the order has been confirmed and so long as it is not unreasonable for the Customer, LEiTEK reserves the right to make changes to the drawings and descriptions etc. that accompanied its offers and order confirmations if they become necessary because of production or because of improvements, experiences or progress made in technology.
5. Price and payment
(1) All of LEiTEK’s prices do not include the necessary VAT or any duties, taxes and forwarding expenses.
(2) All payments must be made in Euros to the bank account specified by LEiTEK.
(3) Unless anything contrary is specified in the offer, the invoice will be sent with each individual Service. Payments are due within 30 days from the date of the invoice. An early payment discount is only allowed if there is a separate written agreement that agrees to this. If 30 days have passed since the due date for payment, LEiTEK is permitted to charge interest at the rate of 8 percentage points above the interest rate of the European Central Bank.
(4) If the two parties later agree to make changes to the contract, LEiTEK is allowed to claim the additional costs this causes. If these changes to the contract reduce the value of the contract, the excess money will be refunded after any additional costs incurred because of the changes have been deducted from this amount.
(5) The material prices that the contract is based on when the contract is signed, are based on the general price list of the manufacturer that is valid at the time. If the agreed delivery or performance date is more than 12 weeks after the contract has been signed, LEiTEK can take into account the interests of the parties to the contract and pass those material price changes on to the Customer.
(6) The Customer may offset only undisputed, contested but ready for a decision or legally established counterclaims against amounts due to LEiTEK. The right of retention or the defence of unfulfilled contract are available to the Customer only within the respective contractual relationship.
(7) LEiTEK has the right to demand full advance payment of its Services if performance is to take place abroad or if the Customer is resident abroad.
(1) Deadlines and dates of performance are not fixed, unless they are expressly fixed by LEiTEK in writing. If LEiTEK’s Services are delayed, the Customer is obliged to demand the Services and set an appropriate deadline. If the Customer sets deadlines or grace periods for compliance or rectification or the removal of a circumstance, these deadlines must be set appropriately; these deadlines must allow at least two attempts and generally be at least five business days. The above-mentioned declarations need to be in writing.
(2) After the reasonable period set has come to an end or the subsequent performance has failed, the Customer is entitled to cancel the contract or reduce the payment.
(3) The commencement of the performance period specified LEiTEK requires the timely and proper fulfilment of the obligations of the Customer. In particular, the order must be completely clear with regard to technical documents and descriptions, hardware, material, etc., and all the necessary on-site conditions for the Services must be fulfilled.
(4) In addition, compliance with the agreed deadlines for the Services presupposes the timely receipt of all the documents to be delivered, the necessary permits and approvals, especially of plans, as well as compliance with the agreed terms of payment and other obligations of the Customer. Unless these conditions are fulfilled in time, the deadlines set shall be extended appropriately. This does not apply if LEiTEK is responsible for the delay.
(5) A contractual penalty for delayed Services rendered is ineffective if it has not been expressly agreed.
(6) If the Services are delayed by circumstances which are caused by the Customer, then the Customer has to bear the reasonable cost of this, especially for waiting times and any additional travelling expenses of LEiTEK’s staff etc.
(7) LEiTEK is entitled to make partial deliveries, as far as this is not unreasonable for the Customer.
(8) The Customer bears the risk of shipping and transport. As soon as LEiTEK has surrendered the Services to be delivered to the person responsible for the transport, the risk is transferred to the Customer, regardless of whether LEiTEK has ordered the dispatch or even carries it out itself.
7. Force majeure
(1) Force majeure includes such circumstances and events that could not be prevented with the due care and diligence of prudent management. Force majeure and unpredictable events, such as operational, traffic or shipping disturbances, fire, floods, unforeseeable shortages of labour, energy, rawmaterials or auxiliary materials, orders by the authorities, orother obstacles for which LEiTEK is not liable and whichdelay, prevent or make the performance unreasonable shall release LEiTEK from the obligation to fulfil the Services for the duration and scope of this event. If because of such an event, the Services are delayed by more than 12 weeks, then both sides are entitled to withdraw from the contract.
(1) LEiTEK is liable for intent and gross negligence – also of their legal representatives or agents – only to the legal requirements for compensation, unless Sections 8.2, 8.3 or 8.4 of the Terms state otherwise.
(2) With regard to slight or simple negligence, LEiTEK is liable only if there is a violation of a duty whose fulfilment makes the proper performance of the contract possible in the first place and on the compliance of which the Customer can regularly rely (cardinal obligation). In the event of a minor breach of a cardinal obligation, liability is restricted to the typical, foreseeable damage.
(3) The liability for the loss of data is limited to the typical cost of restoration, which would have occurred with the Customer’s regular, risk-appropriate data protection.
(4) Liability in line with the product liability law and liability for damages resulting from injury to life, body or health shall remain unaffected by the above-mentioned provisions, as well as the liability due to fraudulent concealment of a deficiency or absence of a quality for which LEiTEK has assumed a guarantee.
(5) The above-mentioned provisions shall also apply to LEiTEK’s employees and agents.
(6) Any liability for damages other than that provided above is excluded, regardless of the legal nature of the claim asserted.