General terms and conditions

General terms and conditions

Status: July 2020

I. Scope

Our Terms and Conditions of Sale and Delivery (hereinafter: GTC) shall apply exclusively. Any terms and conditions of the Purchaser deviating from our GTC shall not apply. If the Purchaser is an entrepreneur, these Terms and Conditions shall apply for the entire duration of current and future business relations with the Purchaser, even if they are not expressly referred to in a subsequent transaction.

II. scope of contract

Our written order confirmation shall be decisive for the scope of delivery; in the event of an offer on our part, this shall be decisive, however, in the event of a time commitment of our offer, this shall only apply if the offer is accepted within the time limit; if the time limit is exceeded, we shall no longer be bound by the offer.

III. prices and payment

In the absence of a special agreement, the prices shall apply ex works (FCA Donaueschingen, ICC Incoterms 2010), including loading at the factory, but excluding packaging. Value added tax at the respective statutory rate shall be added to the prices.

In the absence of a special agreement, payment shall be made in cash, free to our payment office, strictly net within 10 days of the invoice date. In the event of default in payment, we shall be entitled to charge interest on arrears at the usual bank rate, unless we can prove a higher loss of interest or the customer can prove a lower loss of interest. Our right to claim interest on arrears at the respective statutory default interest rate shall remain unaffected in any case. The offsetting of any counterclaims of the customer disputed by us, with the exception of legally established claims, shall not be permitted.

IV. Delivery time

The delivery period shall commence upon receipt of the order confirmation by the Purchaser, but not before the Purchaser has fulfilled its contractual obligations, in particular the provision of any documents, approvals, releases to be procured by it and receipt of any agreed advance payment. The delivery period shall be deemed to have been complied with if the delivery item has left the works or notification of readiness for dispatch has been given by the time the delivery period expires. The delivery period shall be extended appropriately in the event of force majeure, in particular in the event of measures within the scope of industrial disputes, in this case again in the event of strike and lockout, as well as in the event of the occurrence of other unforeseen obstacles which are beyond our control, insofar as such obstacles demonstrably have a considerable influence on the completion or delivery of the delivery item. This shall also apply if these circumstances occur at our suppliers. We shall not be responsible for the aforementioned circumstances even if they occur during an already existing delay. We shall inform the customer immediately of the beginning and end of such hindrances.

V. Software license terms

§1 Subject matter of the contract
(1) The subject matter of this software license grant is the granting of rights of use and exploitation of the software specified in the respective contract ("License Subject") by us to the Customer.

(2) The subject of the license consists of the object code of the software and the documentation.

§2 Granting of rights
(1) With this agreement, we grant the Customer the temporally and spatially unlimited, simple, non-transferable right to use, reproduce and process the subject of the license in accordance with this agreement.

(2) At our request and to the extent that we have a justified interest, the Customer shall permit us or a third party commissioned by us to examine whether the use of the subject matter of the license is within the scope of the rights granted by this agreement; the Customer shall support us to the best of its ability in carrying out such examination.

§3 Handover and installation of the subject of the license
(1) We shall provide the purchaser with the number of copies of the subject of the license required to exercise the rights of use and exploitation granted herein, as well as the documentation as an electronic document. The parties agree that the place of performance for the transfer of the subject matter of the License shall be the registered office of tepcon GmbH. The purchaser shall bear all costs and risks associated with the handover. Upon handover of the subject of the license, the risk of transport (in particular the risk of accidental loss or destruction) of the copies of the subject of the license shall pass to the purchaser.

(2) The Customer shall be responsible for providing the system environment in accordance with the requirements specified in the contract.

(3) The subject of the License shall be installed by the Customer.

§4 License Fees
License fees for the granting of the rights granted by this Agreement shall be paid in accordance with the contractual agreements.

§5 Claims in the event of material defects
(1) The software provided by us essentially corresponds to the product description. Warranty claims shall not exist in the case of an insignificant deviation from the agreed or assumed quality and in the case of only insignificant impairment of the usability. Product descriptions shall not be deemed a warranty without a separate written agreement. In the case of update, upgrade and new version deliveries, claims for defects shall be limited to the innovation of the update, upgrade or new version delivery compared to the previous version status.

(2) If the customer demands subsequent performance due to a defect, we shall have the right to choose between subsequent improvement, replacement delivery or replacement performance. If the Customer has set us another reasonable grace period after the first one has expired without result and this grace period has also expired without result, or if a reasonable number of attempts to remedy the defect, make a replacement delivery or provide a replacement service have been unsuccessful, the Customer may withdraw from the contract under the statutory conditions and demand compensation for damages or expenses. Subsequent performance may also be effected by handing over or installing a new program version or a workaround (= detour to avoid a known malfunction of a technical system). If the defect does not impair functionality or does so only insignificantly, we shall be entitled, to the exclusion of any further warranty claims, to remedy the defect by supplying a new version or an update within the scope of its version, update and upgrade planning.

(3) Defects shall be notified in writing by a comprehensible description of the defect symptoms, as far as possible proven by written records, hard copies or other documents illustrating the defects. The notice of defects shall enable the reproduction of the defect. Statutory obligations of the purchaser to examine and give notice of defects shall remain unaffected.

(4) The limitation period for claims for defects is 12 months. The period shall commence upon delivery of the first duplicate of the subject of the License, including the documentation. In the case of delivery of updates, upgrades and new versions, the period for these parts shall commence in each case upon delivery.

(5) The Purchaser shall immediately inspect the delivered items for any transport damage or other external defects, secure the corresponding evidence and assign any recourse claims to us, handing over the documents.

(6) Claims for damages shall be subject to the restrictions of Section VI.

(7) Modifications or extensions of the services or delivered items made by the Purchaser itself or by third parties shall render the Purchaser's warranty claims for defects null and void unless the Purchaser proves that the modification or extension is not the cause of the defect. We shall also not be liable for defects which are attributable to improper operation and operating conditions or the use of unsuitable operating materials by the Purchaser.

§6 Claims in the event of defects of title
(1) The software delivered or provided by us shall be free from third party rights that prevent use in accordance with the contract. This does not include customary reservations of title.

(2) If third parties are entitled to such rights and assert them, we shall do everything in our power to defend the Software against the asserted rights of third parties at our expense. The Customer shall notify us in writing without undue delay of the assertion of such third party rights and grant us all powers of attorney and authority necessary to defend the Software against the asserted third party rights.

(3) Insofar as defects of title exist, we shall be entitled (a) at our discretion (i) to take lawful measures to eliminate the rights of third parties which impair the contractual use of the Software or (ii) to assert such rights, or (iii) to modify or replace the Software in such a way that it no longer infringes third-party rights, if and insofar as the functionality of the Software owed is not significantly impaired thereby, and (b) obligated to reimburse the Customer for the necessary reimbursable costs of legal action incurred by the Customer.

(4) If the indemnification pursuant to para. 3 fails within a reasonable grace period set by the Purchaser, the Purchaser may rescind the contract under the statutory conditions and claim damages.

VI Liability, Compensation

(1) We shall be liable under this contract only in accordance with the following provisions in (a) to (e): a) We shall be liable without limitation for damage caused intentionally or by gross negligence by us, our legal representatives or executive employees and for damage caused intentionally by other vicarious agents; for gross negligence by other vicarious agents, liability shall be determined in accordance with the provisions for slight negligence set out below in (e). b) We shall be liable without limitation for damages caused intentionally or negligently by injury to life, body or health by us, our legal representatives or vicarious agents. c) We shall be liable for damages due to breach of independent guarantee promises up to the amount which was covered by the purpose of the assurance and which was recognizable for us when the assurance was given. d) We shall be liable for product liability damages in accordance with the regulations in the Product Liability Act. e) We shall be liable for damages resulting from the breach of cardinal obligations by us, our legal representatives or vicarious agents; cardinal obligations are the essential obligations which form the basis of the contract, which were decisive for the conclusion of the contract and on the fulfillment of which the customer may rely. If we have breached these cardinal obligations only through slight negligence, our liability shall be limited to the amount that was foreseeable for us at the time of the respective performance.

(2) We shall be liable for the loss of data only up to the amount that would have been incurred to restore the data if it had been properly and regularly backed up.

(3) Any further liability of tepcon GmbH is excluded on the merits.

VII. commissioned data processing

(1) We act as an order data processor for the tracking and IoT products of our company and process personal data for the ordering party (client within the meaning of the GDPR) on the basis of the contract concluded. Our contractually agreed service is provided exclusively in a member state of the European Union or in a contracting state of the Agreement on the European Economic Area. Any relocation of the service or of partial work on it to a third country requires the prior consent of the Ordering Party and may only be carried out if the specific requirements are met (e.g. adequacy decision of the Commission, standard data protection clauses, approved codes of conduct). If the Ordering Party undertakes data processing outside the scope of protection of the GDPR, it shall ensure compliance with the standards. The duration of the order is to be taken from the underlying contract.

(2) The type and purpose of the processing result from the underlying contract. The Customer alone shall determine the purposes and means of processing personal data. Joint responsibility is excluded.

(3) Rights and Duties as well as Powers of Instruction of the Purchaser

The Ordering Party alone is responsible for assessing the permissibility of the processing and for safeguarding the rights of the data subjects. This applies in particular to compliance with individual and collective data protection regulations under labor law, which are affected by the tracking products used by our company. If a data subject contacts us with requests for correction, deletion or information, we will refer the data subject to the ordering party, provided that an assignment to the ordering party is possible according to the data subject. We will support the ordering party within the scope of our possibilities. We shall not be liable if the request of the data subject is not answered, not answered correctly or not answered in time by the ordering party. Changes to the object of processing and changes to the process shall be agreed jointly between the Purchaser and us and shall be set out in writing or in a documented electronic format. The Purchaser shall place all orders, partial orders and instructions in writing or in a documented electronic format. Verbal instructions shall be confirmed immediately in writing or in a documented electronic format. As set forth in (5) above, the Customer shall be entitled, prior to the commencement of processing and thereafter on a regular basis, to satisfy itself in an appropriate manner that the technical and organizational measures taken by us and the obligations set forth in this Agreement are being complied with.

The purchaser is obliged to treat all knowledge of our trade secrets and data security measures obtained within the framework of the contractual relationship as confidential. This obligation shall remain in force even after termination of this contract.

(4) Authorized persons and recipients of instructions shall be named in the underlying contract. In addition, the communication channels to be used for instructions shall be named; as a rule, these are the exact postal address, e-mail address and telephone number. In the event of a change or long-term prevention of the contact persons, the contract partner must be informed immediately and in principle in writing or electronically of the successors or the representatives. The instructions shall be retained for their period of validity and subsequently for three full calendar years.

(5) Our obligations as contractors

We process personal data exclusively within the framework of the agreements made and in accordance with the instructions of the ordering party, unless we are required to carry out other processing by the law of the Union or the Member States to which we are subject (e.g. investigations by law enforcement or state protection authorities); in such a case, we notify the responsible party of these legal requirements prior to processing, unless the law in question prohibits such notification due to an important public interest. We do not use the personal data provided for processing for any other purposes. Copies or duplicates of the personal data will not be made. The Customer permits the use of the data in the ordinary course of business to achieve system improvements and troubleshooting, and the data will not be disclosed to third parties. In the area of processing personal data in accordance with the order, we ensure that all agreed measures are carried out in accordance with the contract. We shall also ensure, as far as technically possible, that the data processed for the Customer are strictly separated from other data files. The data carriers that originate from the customer or are used for the customer are specially marked. We shall carry out appropriate controls over the entire processing of the service for the Ordering Party. We shall provide the Customer with reasonable support to the extent possible in the fulfillment of the rights of the data subjects by us, in the preparation of the directories of processing activities and in any necessary data protection impact assessments of the Customer. We shall draw the Purchaser's attention without undue delay to any instruction given by the Purchaser which, in our opinion, violates statutory provisions. We shall be entitled to suspend the implementation of the relevant instruction until it is confirmed or amended by the person responsible at the Customer after review. We shall correct, delete or restrict the processing of personal data from the contractual relationship if the Customer requests this by means of an instruction and our legitimate interests do not conflict with this. We agree that the Customer - by appointment - shall be entitled to monitor compliance with the provisions on data protection and data security as well as the contractual agreements to a reasonable and necessary extent itself or through third parties commissioned by the Customer, in particular by obtaining information and inspecting the stored data and the data processing programs as well as through on-site reviews and inspections. We will assist in these controls as necessary. We hereby confirm that we are aware of the data protection regulations of the DS-GVO relevant for commissioned processing. We undertake to observe the Customer's confidentiality rules relevant to the respective order, in particular its confidentiality rules under labor law. We undertake to maintain confidentiality in the processing of the Customer's personal data in accordance with the order. This shall continue to apply even after termination of the contract. We shall ensure that we familiarize the employees employed in the performance of the work with the data protection provisions applicable to them before they commence their activities and that they are bound to secrecy in a suitable manner for the duration of their activities as well as after termination of the employment relationship.

(6) Liability

We are jointly liable with the Ordering Party in the external relationship pursuant to Art 82. para. 1 DSG-VO for material and immaterial damage suffered by a person due to a breach of the DSG-VO. If both the Ordering Party and we are responsible for such damage pursuant to Art. 82. para. 2 DSG-VO, the parties shall be liable in the internal relationship for such damage in proportion to their share of responsibility. If, in such a case, a person asserts a claim for damages against one party in whole or for the most part, that party may demand indemnification or hold harmless from the other party to the extent that this corresponds to its share of the responsibility.

(7) Subcontracting relationships with subcontractors within the meaning of Art. 28 (3) sentence 2 lit. d DS-GVO).

We may, in the ordinary course of business, engage subcontractors to process data of the Purchaser. Subsequent consent to the use of subcontractors may be granted to us if we inform the Customer of the name and address as well as the intended activity of the subcontractor. In addition, we must ensure that we carefully select the subcontractor, paying particular attention to the suitability of the technical and organizational measures taken by the subcontractor within the meaning of Art.32 DS-GVO. We must contractually ensure that the agreed regulations between us and the Customer also apply to the subcontractor. In the contract with the subcontractor, the information must be specified in such concrete terms that the responsibilities between us and the subcontractor are clearly delineated. If several subcontractors are used, this shall also apply to the responsibilities between these subcontractors. In particular, the Purchaser must be entitled to carry out appropriate checks and inspections, including on-site checks and inspections, at subcontractors' premises or to have such checks and inspections carried out by third parties commissioned by the Purchaser. The Purchaser shall be informed immediately of any changes. If there is a substantial reason, the Purchaser shall have the right to object to the change within 2 weeks after receipt of the change notification.

(8) Technical and organizational measures according to Art. 32 DS-GVO (Art. 28 para. 3 sentence 2 lit. c DS-GVO)

The Customer shall be made aware of our technical and organizational measures in the contract. He shall be responsible for ensuring that these provide an appropriate level of protection for the risks of the data to be processed. We reserve the right to change the security measures taken, but it must be ensured that the contractually agreed level of protection is not undercut.

(9) Our obligations after termination of the order

After completion of the contractual work, we shall delete or destroy all data, documents and processing or utilization results created in connection with the contractual relationship that are in our possession or in the possession of subcontractors in accordance with data protection regulations. The customer shall receive notification of this so that he can back up his data. The deletion or destruction shall be confirmed to the Customer in writing or in a documented electronic format, stating the date.

VIII Choice of Law and Venue

All legal relations between us and the purchaser are subject to the law of the Federal Republic of Germany to the exclusion of the Vienna UN Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG). The local and international place of jurisdiction for all disputes arising from the contractual relationship is our registered office. We are also entitled to take legal action at the headquarters of the customer.