Terms and conditions ek-soft GmbH

1. General
1.1 – As to business activities between ek-soft GmbH, to be called ek-soft thereafter, and the customer, the following conditions are to be exclusively applied. They are valid for the total business activities with ek-soft, even if not especially referred to. Alterations and collateral agreements are only effective if confirmed by both contractors in writing.

1.2 – Ownership and copyright of the documents which the offers are based on exclusively belong to ek-soft. Rights of duplication and distribution are subject to provision clause. Offers are not to be made accessible to any third party unless ek-soft explicitly gives written consent to the ordering party. Drawings, samples, and other documents included in the offers are to be returned on demand if the contract fails to take place.

2. Offer and contract of agreement
2.1 – Offers are not binding unless otherwise agreed upon in writing. Orders and agreements are only obliging if confirmed by ek-soft in writing. Delivery and invoicing are equivalent to written confirmation.

3. Prices and payment
3.1 – Prices are based on the actual valid list prices of ek-soft. They are subject to the quality and quantity of the offer and adjusted to the customer’s requests being made thereafter.
3.2 – 3.2 – Prices are quoted ex-warehouse in Leonberg, not including customs duty, packing and delivery costs as well as the actual value-added tax.
3.3 – 3.3 – Unless otherwise agreed upon, installation, training, hotline, and other services are not included in the price.
3.4 – Unless otherwise stipulated in the confirmation order or in the invoice, payment is due immediately without any deductions. In case of developing customer-designed software (programming to order) differently to the normal way of payment, half of the price is due on placing the order, the other half on receipt of the order.
3.5 – If there is a delay in the customer’s payment, ek-soft is entitled to charge interest payable on arrears, being 4 % above the actual rate of discount of the German Federal Bank. In business transactions, the right of retaining is excluded. Otherwise, the right of retaining is excluded if the counter-claim is not based on the same contract. Until having received the whole amount of payment and interests payable on arrears, ek-soft is not obliged to provide further services.
3.6 – The customer is neither allowed to hold back any payments due to a counter-claim nor deduct it, unless they have been legally ascertained or acknowledged by ek-soft in writing.

4. Delivery
4.1 – By written confirmation of the order, ek-soft is obliged to deliver to the extent confirmed. The quality of the items purchased is only guaranteed if agreed upon in writing. During the time of delivery the items to be delivered may be subject to technical alterations which do not interfere with their functioning.
4.2 – The time of delivery starts with the date of confirmation of the order. The time of delivery is not binding, but will be met as far as possible. If the time of delivery is exceeded by more than 30 days, the customer is free to cancel the order after having given a further limit of 60 days of delivery time. Claims for damages due to exceeding the time of delivery are excluded.
4.3 – Independent of the extent of the order, ek-soft reserves the right to make partial deliveries.

5. Transition of danger
5.1 – The risk of accidental destruction or deterioration passes over to the customer as soon as the item to be delivered is dispatched. This also applies to partial deliveries and to cases in which ek-soft pays the costs of transportation, insurance of transportation, or installation.
5.2 – If requested by the customer, insurance of transportation can be arranged at his cost.
5.3 – The risk also passes over to the customer if the delivery, although being made possible, cannot take place because of reasons out of ek-soft’s control. As soon as the customer is informed the item is ready for delivery, the risk passes over to the customer.

6. Withdrawal and return
6.1 – It is only possible to withdraw from an order already placed by the customer if ek-soft agrees in writing. In this case, ek-soft may charge a cancellation fee amounting to 4 % of the net price, to a minimum of 25 Euros.
6.2 – Every return to ek-soft is to be marked on the outside by a RMA number being issued by ek-soft individually. Returns are at the risk of the dispatcher without any costs liable to ek-soft. Returns without a RMA number or without being free of costs are not accepted by ek-soft and returned to the dispatcher at his own costs.
6.3 – An exact description of failure has to be added to every item being sent to ek-soft for repair or control. If during repair no failure can be found ek-soft may charge a sum of 25 Euros, plus costs of transportation and insurance.

7. Guaranty and liability
7.1 – Consumers get 2 years guaranty, employers get 1 year of guaranty. The time of guaranty starts with the delivery of the item, given the faultless functioning of the equipment/item. This does not include defects resulting from improper handling.
7.2 – The rights of guaranty for the customer postulate that he orderly obliges to his duties of controlling and returning according to § 377 and 378 HGB. Defects of the items delivered are immediately to be notified in writing, at the latest 10 days after delivery (respectively in case of hidden defects 10 days after discovery).
7.3 – If the item is installed by ek-soft, the installation has immediately to be checked and approved in situ by the customer. If not approved, it is nevertheless considered as accepted when the customer operates the item delivered and installed. During installation, ek-soft is not obliged to control preparatory works being done by a third party and to draw attention to improper execution. Possible claims for damages resulting thereupon cannot be made by the customer.
7.4 – Claims of guaranty made by the customer in time and approved by ek-soft are restricted to amends or replacements at the choice of ek-soft delivered from the place of business in Leonberg. If amends or replacements fail, the customer is free to choose between reduction or alteration.
7.5 – Claims from damages by the customer (particularly claims from damages resulting thereupon) are excluded whatever the legal reason, unless they are based on purpose or gross negligence.
7.6 – Blames of defects do not affect the term of payment unless their justification is acknowledged by ek-soft in writing and legally ascertained.

8. Reservation of ownership
8.1 – The item delivered is owned by ek-soft until completely paid. The customer may neither pawn nor bail it as long as it is not completely in his possession.
8.2 – In case of behaviour contrary to the contract, especially in case of delay of payment, ek-soft is entitled to take back the item purchased. By taking back the item purchased, this does not mean a withdrawal from the contract, unless stated in writing. If ek-soft pawns the item purchased, this means a withdrawal from the contract. After taking back the item purchased ek-soft is allowed to utilize it. The net proceeds of utilization are to be credited to the customer’s obligations deducting reasonable costs of utilization.
8.3 – If the customer has already sold the item delivered under the claim of ownership, but not yet having paid it, he withdraws from the total claims resulting from this purchase towards a third party leaving the amount of the invoice for the item delivered to ek-soft. By selling the item the customer has to inform the third party about the withdrawal.
8.4 – Test items are to be considered as orders with the right to be returned in between of 10 days. If the item is not returned to ek-soft in between of 10 days starting from the date of issue of the bill of delivery, it will be considered as accepted with the term of payment beginning thereafter.

9. Exportation
9.1 – If the customer exports the item delivered by ek-soft, the customer is informed by ek-soft to observe the regulations of the German Foreign Trade Law in its valid drafting.
9.2 – ek-soft further indicates that the items delivered by them may be subject to domestic or foreign regulations of control. The vendor is not responsible whether the item sold needs an export permit or not, notwithstanding if a verbal or written statement is made. The customer is obliged to check about it on his own.

10. Concluding clauses
10.1 – The place of commercial settling and jurisdiction is Leonberg. However, should there arise any claims or litigations from the contract, ek-soft is entitled to file a suite at the court of the customer’s place of office and residence.
10.2 – The laws of the Federal Republic of Germany are exclusively valid. The right of purchase of the United Nations does not apply.
10.3 – If one or more regulations may become ineffective, this does not influence the validity of the other regulations. Ineffective regulations are to be replaced by those which come closest to the purpose intended.