Last update: July 2020
Our terms and conditions of sale and delivery (hereinafter: T&Cs) apply exclusively. Any terms and conditions of the purchaser that deviate from our T&Cs are invalid. If the purchaser is an entrepreneur, these terms and conditions apply for the entire duration of current and future business relationships with the purchaser, even if they are not expressly referred to in a subsequent transaction.
Our written order confirmation shall be decisive for the scope of delivery, in the case of an offer on our part, this shall apply, however, in the case of a time-bound offer, only if accepted within the time limit; if the deadline is exceeded, we shall no longer be bound by the offer.
Unless otherwise agreed, prices are ex works (FCA Donaueschingen, ICC Incoterms 2020), including loading at the factory, but excluding packaging. VAT at the applicable statutory rate shall be added to the prices.
Unless otherwise agreed, payment must be made in cash, free of charge, to our payment office, within 10 days of the invoice date, net. In the event of late payment, we may charge default interest at the standard bank rate, unless we can prove a higher loss of interest or the customer can prove a lower loss of interest. Our right to demand default interest at the applicable statutory default interest rate remains unaffected in any case. Offsetting against any counterclaims of the customer that we dispute, with the exception of legally established claims, is not permitted.
The delivery period begins upon receipt of the order confirmation by the customer, but not before the customer has fulfilled its contractual obligations, in particular the provision of any documents, approvals, and releases to be obtained, as well as receipt of any agreed down payment. The delivery period is met if the delivery item has left the factory or readiness for dispatch has been communicated by the deadline. The delivery period shall be extended appropriately in the event of force majeure, in particular in the event of industrial action, in this case strikes and lockouts, as well as the occurrence of other unforeseen obstacles beyond our control, provided that such obstacles demonstrably have a significant impact on the completion or delivery of the delivery item. This also applies if these circumstances occur at our suppliers. We are not responsible for the aforementioned circumstances, even if they occur during an existing delay. We will notify the customer immediately of the start and end of such obstacles.
§1 Subject matter of the contract
(1) The subject matter of this software license is the granting by us to the customer of rights of use and exploitation of the software specified in the respective contract (“Licensed Subject”).
(2) The licensed object 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 licensed object in accordance with this contract.
(2) At our request and to the extent that we have a legitimate interest, the Customer shall allow us or a third party commissioned by us to examine whether the use of the Licensed Object complies with the rights granted under this Agreement; the Customer shall assist us to the best of its ability in conducting such an examination.
§3 Handover and installation of the licensed object
(1) We will provide the customer with the number of copies of the Licensed Object 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 Licensed Object shall be the registered office of tepcon GmbH. The customer shall bear all costs and risks associated with the transfer. Upon transfer of the Licensed Object, the transport risk (in particular the risk of accidental loss or destruction) of the copies of the Licensed Object shall pass to the customer.
(2) The Purchaser is responsible for providing the system environment in accordance with the requirements listed in the contract.
(3) The Licensed Item shall be installed by the Purchaser.
§4 License fees
License fees for the granting of the rights granted under this Agreement shall be paid in accordance with the contractual arrangements.
§5 Claims for material defects
(1) The software provided by us essentially corresponds to the product description. Warranty claims for defects do not exist in the event of an insignificant deviation from the agreed or assumed quality and in the event of only an insignificant impairment of usability. Product descriptions do not constitute a warranty without a separate written agreement. In the case of updates, upgrades, and new version deliveries, claims for defects are limited to the innovation of the update, upgrade, or new version delivery compared to the previous version.
(2) If the customer requests subsequent performance due to a defect, we shall have the right to choose between repair, replacement delivery, or replacement service. If the customer has granted us a further reasonable grace period after an initial period has expired without result and this grace period has also expired without result, or if a reasonable number of attempts at repair, replacement delivery, or 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 provided 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 affect functionality or only affects it insignificantly, we shall be entitled, to the exclusion of further warranty claims, to remedy the defect by delivering a new version or an update as part of its version, update, and upgrade planning.
(3) Defects must be reported in writing by providing a comprehensible description of the symptoms, as far as possible, and supported by written records, hard copies, or other documents illustrating the defects. The notification of defects should allow for the reproduction of the defect. The purchaser's statutory obligations to inspect and notify the defect remain unaffected.
(4) The limitation period for claims for defects is 12 months. This period begins with the delivery of the first copy of the Licensed Item, including the documentation. In the case of updates, upgrades, and new versions, the limitation period for these items begins with delivery.
(5) The purchaser shall immediately inspect the delivered items for any transport damage or other external defects, secure the relevant evidence and assign any claims for recourse to us, including the surrender of the documents.
(6) Claims for damages are subject to the restrictions of Section VI.
(7) Modifications or extensions to the services or delivered items made by the customer himself or by third parties shall void the customer's warranty claims, unless the customer proves that the modification or extension is not the cause of the defect. We are also not liable for defects resulting from improper operation and operating conditions or the use of unsuitable operating materials by the customer.
§6 Claims in the event of legal defects
(1) The software delivered or provided by us is free of any third-party rights that conflict with its contractual use. Except for customary retention 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 third-party rights at our own expense. The customer shall notify us immediately in writing 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) To the extent that defects of title exist, we are (a) entitled, at our discretion, to (i) take lawful measures to eliminate the rights of third parties which impair the contractual use of the software, or (ii) to eliminate the assertion of such rights, or (iii) to modify or replace the software in such a way that it no longer infringes the rights of third parties, if and to the extent that this does not significantly impair the functionality of the software, and (b) to reimburse the customer for the necessary, reimbursable costs of legal action.
(4) If the indemnification pursuant to paragraph 3 fails within a reasonable grace period set by the Purchaser, the Purchaser may withdraw from the contract and claim damages under the statutory conditions.
(1) We are only liable under this contract in accordance with the following provisions in (a) to (e): a) We are liable without limitation for damages caused intentionally or through gross negligence by us, our legal representatives or senior employees, as well as for damages caused intentionally by other vicarious agents; for gross negligence by other vicarious agents, liability is determined according to the provisions for slight negligence listed below in (e). b) We are liable without limitation for damages caused intentionally or through negligence resulting from injury to life, body or health by us, our legal representatives or vicarious agents. c) We are liable for damages due to the breach of independent guarantee promises up to the amount that was encompassed by the purpose of the guarantee and that was foreseeable to us when the guarantee was given. d) We are liable for product liability damages in accordance with the provisions of the Product Liability Act. e) We are liable for damages resulting from the breach of cardinal obligations by us, our legal representatives or vicarious agents; Cardinal obligations are the essential obligations that form the basis of the contract, which were crucial for the conclusion of the contract, and on whose fulfillment the customer may rely. If we have breached these cardinal obligations only through slight negligence, our liability is 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 the data had been properly and regularly backed up.
(3) Any further liability of tepcon GmbH is excluded in principle.
(1) We act as a contract data processor for our tracking and IoT products and process personal data for the customer (client within the meaning of the GDPR) on the basis of the concluded contract. Our contractually agreed service is provided exclusively in a member state of the European Union or in a state party to the Agreement on the European Economic Area. Any relocation of the service or any part of it to a third country requires the prior consent of the customer and may only take place if the specific requirements are met (e.g., adequacy decision of the Commission, standard data protection clauses, approved codes of conduct). If the customer carries out data processing outside the scope of the GDPR, they must ensure compliance with the standards. The duration of the contract can be found in the underlying contract.
(2) The type and purpose of processing shall be determined by the underlying contract. The customer alone determines the purposes and means of processing personal data. Joint responsibility is excluded.
(3) Rights and obligations as well as authority to give instructions of the purchaser
The customer is solely responsible for assessing the admissibility of processing and for safeguarding the rights of the data subjects. This applies in particular to compliance with individual and collective labor law data protection regulations that are affected by the tracking products used by our company. If a data subject contacts us with requests for rectification, deletion, or information, we will refer the data subject to the customer, provided that assignment to the customer is possible based on the information provided by the data subject. We will support the customer to the best of our ability. We are not liable if the customer does not respond to the data subject's request, does not respond correctly, or does not respond within the deadline. Changes to the subject matter of processing and procedural changes must be agreed upon jointly between the customer and us and recorded in writing or in a documented electronic format. The customer generally issues all orders, partial orders, and instructions in writing or in a documented electronic format. Verbal instructions must be confirmed immediately in writing or in a documented electronic format. The customer is entitled, as set out in (5), to ensure, before the start of processing and then regularly in an appropriate manner, that the technical and organizational measures taken by us and the obligations set out in this contract are complied with.
The customer is obligated to treat all knowledge of our business secrets and data security measures acquired within the scope of the contractual relationship as confidential. This obligation shall remain in effect even after termination of this contract.
(4) Authorized persons and recipients of instructions are named in the underlying contract. The communication channels to be used for instructions are also specified; these are generally the exact postal address, email address, and telephone number. In the event of a change of contact person or a prolonged inability to provide services, the contractual partner must be notified immediately, generally in writing or electronically, of the successors or representatives. The instructions must be retained for their term of validity and for three full calendar years thereafter.
(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 customer, unless we are obliged to process the data in a different manner by the law of the Union or the Member States to which we are subject (e.g. B. investigations by law enforcement or state security authorities); in such a case, we will inform the controller of these legal requirements before processing, unless the law in question prohibits such notification on grounds of important public interest. We do not use the personal data provided for processing for any other purposes. No copies or duplicates of personal data will be created. The customer permits the use of the data in the normal course of business to achieve system improvements and to correct errors, whereby the data will not be passed on to third parties. We ensure that all agreed measures are carried out in accordance with the contract when processing personal data. We also ensure, as far as technically possible, that the data processed for the customer is strictly separated from other data sets. The data carriers that originate from the customer or used for the customer are specially marked. We must carry out appropriate controls throughout the entire service provision for the customer. We shall, as far as possible, provide the customer with appropriate support in fulfilling the rights of the data subjects, in compiling records of processing activities and in carrying out necessary data protection impact assessments by the customer. We will immediately inform the customer if, in our opinion, an instruction given by the customer violates legal regulations. We are 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 must correct, delete or restrict the processing of personal data arising 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 is entitled – after making an appointment – to monitor compliance with the provisions on data protection and data security as well as the contractual agreements to the appropriate and necessary extent, either 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 by conducting on-site checks and inspections. We will provide support in these checks where necessary. We hereby confirm that we are aware of the data protection regulations of the GDPR that apply to order processing. We undertake to observe the customer's confidentiality protection rules relevant to the respective order, in particular its labor law confidentiality protection rules. We undertake to maintain confidentiality when processing the customer’s personal data in accordance with the order. This continues even after termination of the contract. We ensure that we familiarize the employees involved in carrying out the work with the relevant data protection provisions before they begin their work and that we appropriately obligate them to maintain confidentiality for the duration of their work as well as after the termination of their employment.
(6) Liability
We are jointly liable with the customer in external relations pursuant to Article 82 (1) GDPR for material and immaterial damages suffered by a person due to a violation of the GDPR. If both the customer and we are responsible for such damages pursuant to Article 82 (2) GDPR, the parties are liable internally for these damages in proportion to their share of responsibility. If, in such a case, a person asserts a claim for damages against a party, either wholly or predominantly, in such a case, the party may demand indemnification or compensation from the other party insofar as this corresponds to their share of responsibility.
(7) Subcontracting relationships with subcontractors within the meaning of Art. 28 (3) Sentence 2 (d) GDPR)
We may commission subcontractors to process the customer's data in the normal course of business. Subsequent consent to the use of subcontractors can be granted to us if we inform the customer of the name and address as well as the intended activity of the subcontractor. We must also ensure that we select the subcontractor carefully, paying particular attention to the suitability of the technical and organizational measures taken by the subcontractor within the meaning of Art. 32 GDPR. We must contractually ensure that the agreed provisions between us and the customer also apply to the subcontractor. The contract with the subcontractor must specify the details in such detail that the responsibilities between us and the subcontractor are clearly delineated. If multiple subcontractors are used, this also applies to the responsibilities between these subcontractors. In particular, the customer must be authorized to carry out appropriate checks and inspections, including on-site, at subcontractors or to have them carried out by third parties commissioned by the customer, if necessary. The customer will be informed immediately of any changes. If there is a significant reason, the customer has the right to object to the change within 2 weeks of receiving the notification of the change.
(8) Technical and organizational measures pursuant to Art. 32 GDPR (Art. 28 (3) sentence 2 lit. c GDPR)
The customer will be informed of our technical and organizational measures in the contract. The customer is responsible for ensuring that these provide an appropriate level of protection for the risks posed by the data to be processed. We reserve the right to change the security measures taken, but we must ensure that the contractually agreed level of protection is not undercut.
(9) Our obligations after completion of the contract
Upon completion of the contractual work, we must delete or destroy all data, documents, and processing or usage results related to the contractual relationship that are in our possession or that have come to our subcontractors in accordance with data protection regulations. The customer will receive a notification of this so that they can back up their data. Confirmation of the deletion or destruction must be provided to the customer in writing or in a documented electronic format, including the date.
All legal relationships between us and the customer are subject to the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) of April 11.04.1980, XNUMX. The local and international place of jurisdiction for all disputes arising from the contractual relationship is our registered office. We are also entitled to sue at the customer's headquarters.