Ophelia GmbH & Co. KG – General Terms of Business
(1) All contracts, agreements, deliveries and services with Ophelia GmbH & Co. KG (Ophelia) are subject to the following General Terms of Business. General Terms of Business of purchasers/order placing companies are not recognised by Ophelia even if they are not explicitly contradicted by Ophelia. Deviating or supplementary agreements always require an explicit written arrangement with Ophelia to become effective.
(2) All commissions, orders and any special assurances by Ophelia require written confirmation by Ophelia. A waiver of the written form can also only be implemented with a written agreement.
2. Entering into a contract
(1) Every Ophelia quotation is without engagement and be limited in time. A binding contract with Ophelia can only be signed with a written confirmation from Ophelia. The exclusive compliance with these terms is acknowledged at the time of placing the order, but at the latest when the ordering company acknowledges the receipt of goods or services ordered from Ophelia.
(2) Cost estimates, system analyses, project documentation, drawings, samples, drafts and other documents from Ophelia that are made available to the ordering company/purchaser prior to signing a contract cannot be used in any other way nor made available to third parties.
(3) Orders in line with drawings, sketches and other information made available by the ordering company/purchaser will be carried out by Ophelia without checking a breach of possible patent rights of third parties and at the customer’s risk. If due to such order processing there are interventions in foreign rights that can be attributed to instructions/ directives of the ordering company/purchaser, the ordering company/ purchaser is wholly liable for this. He must then exempt Ophelia from all losses/claims from third parties, especially as far as they are made in this connection by third parties against Ophelia.
3. Delivery times and deadlines
(1) Delivery times and deadlines are always without engagement and only binding if in individual cases they are confirmed as a fixed delivery date in writing by Ophelia. Adherence to any delivery date or deadline by Ophelia obliges the ordering company/purchaser to submit to Ophelia any to be obtained information and authorisations in good time. If this is not the case or if non-adherence to a deadline is due to unforeseen events for which Ophelia is not accountable, the deadline is extended accordingly.
(2) Delivery dates and deadlines count for being adhered to if the risk passed over to the ordering company/purchaser before their expiration or if the ordered product/service has been accepted. With the hand-over of the product/service to the person or transport facility, the risk is transferred to either of them. This also applies if Ophelia-own transporting means are used if there is no malice aforethought or gross negligence.
(3) If a delivery date or deadline is exceeded by more than 6 weeks and a reasonable grace period set by the ordering company/purchaser passes without success, the ordering company/purchaser can cancel the contract; further claims by the ordering company/purchaser are excluded unless malice aforethought or gross negligence by Ophelia can be proven.
(4) Ophelia is entitled to bring about deliveries and services in stages.
(5) Provided that nothing else was agreed, Ophelia has the right but not the obligation to insure the dispatched goods against transport risks of any kind at the cost of the ordering company/purchaser. Neither such an insurance nor a possibly agreed taking over of transport costs by Ophelia will influence the risk transfer as outlined in paragraph 2.
(6) Unforeseen incidents (such as act of God, unrests, transport delays, strikes or other production interruptions and disrupting occurrences) release Ophelia for their duration of the obligation to deliver on time and also if they occur during an already happened delay; if they take longer than six weeks, Ophelia has the right to withdraw partially or totally from the contract; claims for damage by the ordering company/ purchaser are excluded in this case; however, his legal right to withdraw will continue.
4. Prices – Payment Terms
(1) All deliveries and services are made at prices and. should the occasion arise, special conditions in the written order acknowledgement. The prices are not binding for repeat orders from the order company/purchaser. Price quotations are generally net price free despatch parts. All despatch costs, especially packaging, transport costs and transport insurance as well as the statutory turnover tax will be invoiced in addition. The same applies to incurred travel and overnight accommodation expenses.
(2) If nothing else was agreed, payments to Ophelia will have to be made net within 14 days from invoice date without any deductions.
(3) Ophelia is entitled to charge interest of 8% above the basic interest rate in commercial business dealings from due date (payment target without reminder), otherwise from date of default of payment.
(4) All claims by Ophelia including those for which bills of exchange or cheques were accepted or for which payment by instalment was agreed are due immediately if an ordering company/purchaser does not adhere either with intent or with gross negligence to individual Ophelia Business Terms over a longer period or if after the start of the business relationship Ophelia hears about a substantial decline in financial circumstances of the ordering company/purchaser. Ophelia is also entitled in these cases to make still outstanding deliveries and services only against prepayment or against specific security. If prepayment or specific security is not forthcoming from the ordering company/ purchaser even after an appropriate extension of time, Ophelia can withdraw from the contract. Claims for damage by the ordering company/purchaser are excluded in this case.
(1) Ophelia grants their specialised trade partners the right to return ordered and delivered products that do not comply with the specifications or assurances of Ophelia. This right to return has to be declared to Ophelia by the specialised trade partners within seven days from the delivery date. After this date, the delivered products are accepted as delivered without imperfections.
(2) As for the rest, there is no general right of withdrawal, but if Ophelia at the request of the ordering company/purchaser allows a withdrawal from the contract without any obligation to do this, an appropriate amount will have to be paid by the ordering company/purchaser as expense allowance and secondary damage. Ophelia will invoice this separately. If appliances or programs are specially produced for the order, a withdrawal will be rejected by Ophelia.
(3) If the ordering company/purchaser effectively withdraws before the installation of systems, a withdrawal flat rate of 5% of the goods value plus a fee resulting in particular from Ophelia services rendered (such as programming, configuration etc.) will have to be paid.
(4) If systems are taken back by Ophelia after a previously agreed test phase, a flat rate payment on top of transport costs of 150,00 €+ VAT for an order value of up to 8,000.00 € and of 350.00 € + VAT for an order value of more than 8,000.00 € will have to be made.
6. Ownership with reservation
(1) Ophelia reserves the right of ownership for products delivered by them until complete disbursement of all receivables generated and possibly to be generated by the business relationship.
(2) Every processing on behalf of Ophelia by the ordering company/ purchaser of all rights reserved goods delivered by Ophelia is completed without creating any commitments for Ophelia. When merging goods with products in Ophelia’s ownership, Ophelia is entitled to sole or shared ownership of the new objects in proportion to the value of the processed products and other goods at the time of the merger. Products created in this way are products of Ophelia with reservations. The ordering company/purchaser will keep the solely or jointly owned products with reservations for Ophelia and attend to them commercially.
(3) The sale of products with reservations is only permitted in orderly business dealings of the ordering company/purchaser. All other disposals that put the rights of Ophelia at risk (especially pledges or security transfers of ownership) are disallowed.
(4) Receivables the ordering company/purchaser is entitled to from reselling products with reservations or for legal reasons concerning products with reservations, he now transfers for safety reasons to Ophelia. If he sells products with reservations together with other goods,
(5) possibly also after treatment or processing or in connection with other goods, he relinquishes herewith his claims on the purchase price as far as they correspond with the ownership share of Ophelia on the product with reservations. The ordering company/purchaser is non-irrevocably authorised and obligated to collect the transferred receivables. Ophelia can show the transfer to the buyers of the ordering company/purchaser at any time.
(6) The ordering company/purchaser will provide Ophelia with all information about products with reservations and about claims that were transferred to Ophelia. When third parties have access to products with reservations, the ordering company/purchaser will point out Ophelia’s ownership and inform Ophelia without delay. The costs of an intervention are borne by the ordering company/purchaser.
(7) If the ordering company/purchaser does not comply with his liabilities to pay as he should, Ophelia is entitled to take back the goods with reservations at any time; exercising this legal right does not constitute a withdrawal of the contract, provided the ordering company/purchaser is a businessman.
(8) Ophelia will release the securities at the request of the ordering company/purchaser with whom Ophelia is in a long-standing business relationship in so far as their value exceeds all secured receivables by more than 20%.
(1) The acceptance of special software/hardware products / services from Ophelia is completed with the successful implementation of the function test carried out by Ophelia (together with the ordering company/ purchaser) after the installation or immediately before hand-over to the ordering company/purchaser. The function test is carried out successfully if no faults are found in the products/services after the use of diagnostics and test programs or processes developed for this purpose by Ophelia. After the function test, Ophelia informs the ordering company/purchaser in writing about the operational readiness of the products; the ordering company/purchaser has to sign a receipt for this information.
(2) The acceptance of all other products is carried out on delivery by the ordering company/purchaser. The ordering company/purchaser can only contradict the acceptance in the form of a written declaration to Ophelia immediately after delivery of the products by giving exact details of the defects.
(3) If in the order acknowledgement for the products/services to be delivered a full service by Ophelia was agreed/confirmed, this would have no effect on the acceptance itself.
(1) Ophelia guarantees that products delivered by them are free from material and production faults at the time of the risk transfer. Ophelia also guarantees that the software delivered by them was produced with due care and special know-how. However, according to the latest state of technology, a complete exclusion of faults in software is not possible. Selecting software functions, their use and the results achieved are the responsibility of the ordering company/ purchaser. If the risk transfer or the acceptances of deliveries and/or services happen at different times, there will also be different warranty time limits. Ophelia warranty always and exclusively refers to each specific delivery of goods and/or service rendered, even if it concerns a partial delivery and/or partial service.
(2) For faulty deliveries or services, the Ophelia warranty is limited to retouching or replacement delivery – Ophelia’s choice. For goods not produced by Ophelia, the warranty obligation is limited to transferring the warranty claims against the manufacturer; the ordering company/ purchaser accepts the transfer. Software faults that more than slightly affect the utilisation as directed will be corrected by Ophelia, i.e. in their choice and dependent on the significance of the fault either by delivering an improved software version or by information on how to remove or bypass the effects of the fault; this also applies in case the software delivered by Ophelia was not produced by them. The at the ordering company/purchaser expanded and replaced parts in connection with the Ophelia warranty return into the ownership of Ophelia if this is not a product with reservations (see §6).
(3) As far as Ophelia acknowledges a complained about fault, Ophelia will pay for their own reworking costs. The ordering company/purchaser allows Ophelia the required time and opportunity at fair assessment for removing the fault; if the ordering company/purchaser refuses to cooperate, Ophelia is released from the obligatory warranty. Ophelia’s obligations for further-going full service are not affected by this.
(4) All warranty obligations of Ophelia for delivered products are null and void if third parties interfere, change, retrofit or carry out other work without authorisation from Ophelia. Ophelia extends no warranty for faults caused by wear and tear or by improper treatment of the products after risk transfer.
(5) Retrofitting work and replacement deliveries do not extend the original start of the warranty period.
(6) If by means of retrofitting or replacement delivery the removal of faults fails, the ordering company/purchaser has the right to demand an adequate reduction in payment or purchase price. If no agreement can be reached about an adequate reduction, both parties can withdraw from the contract.
(7) Further going warranty claims – no matter for what legal reason – are excluded.
(8) Warranty claims against Ophelia become obsolete at the latest one year after risk transfer to the ordering company/purchaser or respectively after acceptance.
(9) The ordering company/purchaser hereby allows Ophelia the so-called dial-up service. Ophelia can now remove faults electronically. Should the ordering company/purchaser refuse to allow the so-called VPN dial-up service, Ophelia is in this case obligated to remove faults only by charging for additional costs (travel expenses, travelling time) created by the refusal.
9. Claims for Damages
(1) Claims for damages against Ophelia and their fulfilment or pressing need aids, no matter for what legal reason, but in particular caused by consultation, positive contract breach, unauthorised action or producer liability are excluded; this does not apply to acting with intent or with gross negligence. However, limited liability does not take into account direct material damage on goods (damage caused by faults) and such follow-up defects on features pledged by Ophelia that are supposed to protect the ordering company/purchaser against them.
(2) Ophelia cannot be held responsible for replacing data, other than if Ophelia caused this by gross negligence or with intent and the ordering company/purchaser made sure that these data were made available in machine-legible form and could have been reconstructed with justifiable expenditure.
(3) The reason for claiming damages against Ophelia must be put in writing to Ophelia by the ordering company/purchaser immediately after the initial numbered damage occurred and at the latest within a time limit of 6 months from the initial numbered damage claim. Belated announced or numbered claims for damage are excluded.
(4) The above liability exclusions do not apply in cases of infringement of life, body and/or health.
10. Commercial patent rights
(1) When German commercial patent rights (including copyright) are infringed by an Ophelia product, Ophelia exempts the ordering company/purchaser from damage claims of the patent right holder. Ophelia takes on the legal costs judicially imposed on the ordering company/purchaser and the amount of damages if these are immediately notified in writing by the ordering company/purchaser and all defence measures and composition proceeding negotiation rights are reserved for Ophelia.
(2) If claims according to Paragraph 1 are enforced or expected against the ordering company/purchaser, Ophelia can alter the affected product at Ophelia’s cost to a reasonable degree acceptable to the ordering company/purchaser or exchange it. Alternatively, Ophelia can also take back the product and refund the purchase price less a reduction for depreciation dependent on the age of the product or acquire the right to use.
(3) Ophelia is released from all obligations in line with this directive if claims consistent with Paragraph 1 on the side of the ordering company/ customer are based on provided customer programs or data or are due to the product not being in a valid, unchanged original condition or used for other purposes than the application conditions specified in the performance description.
(4) Further-going obligations of Ophelia for claims in connection with breaches of third party commercial patent rights do not exist with regard to the ordering company/purchaser.
(1) Ophelia grants the ordering company/purchaser a non-transferrable and non-exclusive right for internal use of the software with the products bought from Ophelia – or foreign software – for which the software was supplied. The same applies for documentation belonging to it, including copies and additional supplements. All other rights on the software and documentation, including later supplements remain with Ophelia or the respective software manufacturer.
(2) The ordering company/purchaser must ensure that the supplied software and documentation as well as any supplements are not accessible to third parties without prior approval from Ophelia. Copies can only be made for archiving, as replacement or for fault finding; Paragraph 1 applies accordingly. Surrendering source programs is not intended and in exceptional cases will require a special written agreement with Ophelia.
(3) The ordering company/purchaser is obligated to also put the specific notes about copyright protection (= e.g. notes about copyright) and other legal provisos on copies to be made.
12. Other matters
(1) The ordering company/purchaser is not authorised to make over, pawn or in any other way charge his entitlements from a contract with Ophelia with the rights of third parties.
(2) The ordering company/purchaser can transfer the resulting rights and obligations from a contract with Ophelia also in total only with express agreement from Ophelia.
(3) These General Terms of Business continue to be effective in the remaining parts even if individual directives become null and void.
(4) Place of Implementation and Legal Domicile – as far as nothing else was agreed – is Bielefeld.
(5) German Civil Law and Commercial Law applies to the contractual relationship between Ophelia and the ordering company/purchaser. EU Purchase Law does not apply.
Bielefeld, August 2009