General terms and conditions
I. General agreement
1. Scope of application
The following terms and conditions apply to all goods and services (hereinafter referred to as the contractual services) of HYMES Networks GmbH, hereinafter referred to as “HYMES Networks”. Terms and conditions of the customer that deviate from these terms and conditions shall only become an integral part of this contract if they have been confirmed in writing by HYMES Networks either by e-mail or by post. This applies even if, within the framework of a business relationship, a specific order confirmation by HYMES Networks is not issued.
2. Conclusion of contract
Offers from HYMES Networks are subject to change. Orders placed by the customer are regarded as an offer to HYMES Networks and are accepted only upon the dispatch of an order confirmation. The contract with HYMES Networks will come about only upon receipt of a written order confirmation from HYMES Network by the customer or with the delivery of goods to the customer.
II. Performance conditions (terms of delivery)
1. Delivery time
For the course of contractual deadlines, the clarification of all technical and other details of the order as well as the provision of all the necessary documents of the customer and the payment of any agreed down payment is decisive. The deadlines shall be extended by an appropriate period of time, at least by the period by which the customer is in arrears with his obligation to cooperate.
2. Unforeseen obstacles
If the time of performance/delivery time is extended due to unforeseen events after the conclusion of the contract, for reasons for which HYMES Networks is not responsible, in particular on account of operational breakdowns, strikes, lock-outs or disruptions to transport routes, then the time of performance/delivery period shall be extended – even within a delay – by the duration of such measures and obstacles. This rule applies even if the unforeseen obstacles mentioned above occur at HYMES Networks and his sub-suppliers.
3. Consequences of default
a) The customer may, if he can prove that damage has arisen to him due to the late delivery of HYMES Networks, demand compensation of 0.25%, for each full week of delay but not exceeding 2.5% of the price of that part the contractual service which has not been rendered on time.
b) Claims for damages by the customer due to delayed contractual performance as well as claims for damages in lieu of performance which exceed the limits referred to in paragraph 3 a) are excluded. This does not apply if HYMES Networks is necessarily liable on account of wilful misconduct, gross negligence or injury to life, limb or health.
c) The customer can withdraw from the contract only in the context of the statutory provisions insofar as HYMES Networks is responsible for the delay in contractual performance.
III. Terms of payment
The prices specified by HYMES Networks are non-binding. Prices are net prices plus VAT at the applicable rate.
2. Validity of the prices
Invoices are issued with the prices valid on the day of the order confirmation, unless the customer has another written and binding offer of HYMES Networks. The prices specified apply only to the individual order in question. Fixed prices are applicable only if the confirmed quantity is ordered.
3. Reservation of price changes
HYMES Networks is entitled to increase prices by an appropriate amount when material costs or market prices rise between the conclusion of the contract and the agreed delivery date or if more than four months lie between the contract conclusion and the agreed delivery date.
4. Additional costs
a) The prices specified include the cost of normal packaging, without loading, transport and insurance.
b) The prices do not include royalties. It is the customer’s responsibility to enter into a licensing agreement with the respective copyright holders and to pay the appropriate license fee.
c) If the shipment of the goods is delayed for more than two weeks after the due delivery date or after notification of readiness for dispatch, HYMES Networks is entitled, for each week commenced, to charge storage costs of 0.5% of the price of the goods, but no more than a total of 5%. The right of HYMES Networks to assert further claims for damage caused by the delayed delivery remains reserved.
5. Maturity and forms of payment
Invoices issued by HYMES Networks are due immediately and without deduction. Any other payment arrangements must be agreed separately in writing with HYMES Networks. HYMES Networks is entitled to carry out partial deliveries and issue partial invoices as appropriate.
6. Violation of terms of payment
a) HYMES Networks is entitled to charge interest from the start of the delay at the rate of at least 8% above the base rate of the Deutsche Bundesbank. HYMES Networks reserves the right to assert further claims for damaged caused by the delay. All payments must be made to the accounts of HYMES Networks referred to in the invoices.
b) If the payment terms are not complied with by the customer or if HYMES Networks becomes aware of facts that indicate a significant deterioration in the assets of the customer, HYMES Networks is entitled to make additional contractual services dependent on prepayment or the provision of appropriate securities. Any established credit lines are always non-revocable.
IV. Reservation of title
1. All deliveries take place under both simple and extended retention of title as well as current account reservation. Until all claims – including all current account balance claims that HYMES Networks is entitled to vis-à-vis the customer now or in future – have been settled, the delivered goods remain the property of HYMES Networks.
2. HYMES is entitled to assign the claims from its business relations.
3. In the event of any conduct of the customer that is not in conformity with the contract, especially upon default of payment, the customer is obliged to surrender the goods to HYMES Networks after a reminder has been sent. The assertion of the reservation of title and the seizure of the goods delivered by HYMES Networks do not constitute withdrawal from the contract.
4. The customer is entitled to sell the goods or processed products in the ordinary course of business. The customer now cedes to HYMES Networks all his claims vis-à-vis the end customer from the resale for its security. The customer is authorized and obliged to collect the receivables as long as HYMES Networks does not revoke this authorization. HYMES Networks will not make use of its authority to collect as long as the customer meets his payment obligations and is not in default of payment. The customer is obliged to supply, upon the first request and at any time, full information about the whereabouts of the goods supplied by HYMES Networks and to submit all the relevant documents that HYMES Networks requires to assert its rights of title.
5. If the delivered goods are transformed, processed or inseparably mixed with other goods, HYMES Networks shall thus acquire joint ownership of the remodelled, processed or newly manufactured item in proportion to the value of the delivered goods to the other items not belonging to HYMES Networks.
6. The customer may not pledge or assign the delivered good as security. HYMES Networks must be notified by the customer immediately of any seizures or other dispositions by third parties. The customer must provide HYMES Networks with all the information and documents necessary to safeguard the rights of HYMES Networks. The property of HYMES Networks must be pointed out to enforcement officers or third parties by the customer.
7. An offset by the customer with counterclaims is excluded, unless the counterclaims are undisputed or legally determined. The assertion of a right of retention by the customer is excluded, unless it is based on the same contractual relationship or the counterclaims are undisputed or legally established.
V. Transfer of risk/transport damage
1. The risk of loss and deterioration of the goods passes to a forwarder or carrier upon the delivery of the goods, at the latest however upon leaving the warehouse or notification of the readiness for shipment to the customer. Any storage of the goods is at the expense and risk of the customer.
2. HYMES Networks decides, at its own discretion, the shipping route and means of transport, unless otherwise agreed. At the express request and at the expense of the customer, HYMES Networks shall insure the goods, insofar as possible. Transport damage must be confirmed prior to acceptance of the goods by the carrier. Without prejudice to his rights, the customer must also accept the delivered items even if they show signs of shipping damage or defects.
VI. Material defects
1. Consequences of default
The customer must notify HYMES Networks of any defects immediately and in writing. If the notice of defects is unjustified, HYMES Networks is entitled to demand compensation from the customer for the expenses incurred. Subject to higher expenses, HYMES Networks is entitled to demand an administration fee amounting to €15 per piece plus VAT.
2. Defects warranty
n the event of a material defect, the agreed contractual services must be, at the discretion of HYMES Networks, subsequently improved, delivered or rendered again (subsequent performance) without charge, provided that the cause existed at the time of transfer of risk. If the subsequent performance fails twice, the customer can withdraw from the contract, reduce the purchase price and/or claim damages.
3. Exclusion of warranty for defects
a) HYMES Networks provides no warranty for defects caused by improper handling of the goods (e.g. the unauthorized opening of devices) or those that are based on hardware or software modifications. With hardware or software modifications that alter the condition of the goods, re-establish the manufacturer’s capacity or are prohibited by law, HYMES Networks shall no longer be liable as a producer and the product specifications concerned are no longer valid.
b) Claims for defects cannot be asserted in cases of non-reproducible software errors, insignificant deviations from the agreed quality, only minor impairment of usefulness, natural wear and tear or damage arising after the passing of the risk from faulty or negligent handling, excessive strain, unsuitable equipment, or particular external influences not assumed under the contract. Claims of the customer relating to the expenses necessary for the purpose of rectification, in particular transport, travel, labour and material costs, are excluded in the event that these costs have increased because the object of delivery has been subsequently taken to a place other than the customer’s establishment.
4. Guarantee period
Warranty claims for material defects expire twelve months after the transfer of risk. This does not apply insofar as the law prescribes longer periods and in cases of injury to life, limb or health and in the event of the fraudulent concealment of a defect.
5. Regress in the supply chain
In the supply chain, the customer is obliged, vis-à-vis end customers who are entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), to eliminate, by means of appropriate contractual agreements, in the event of a material defect, it is supposed that the item was already defective when the risk was transferred. The customer undertakes to inform his end customers of the restriction of the warranty by HYMES Networks and to pass on these regulations accordingly via the GTC, insofar as permitted. The customer’s claims vis-à-vis HYMES Networks pursuant to Section 478 of the German Civil Code (BGB) is limited to cases where the customer has not concluded an agreement with his customers that goes beyond the scope of the statutory provisions governing claims based on defects. The scope of the customer’s right of recourse of the vis-à-vis HYMES Networks shall be governed by Section 478 paragraph 2 of the BGB and item VII.
VII. Industrial property rights/protection of intellectual property/defects of title
1. Submitted documents:
HYMES Networks unconditionally reserves the intellectual property and copyright rights of drawings, samples and other documents (hereinafter referred to as documents). The documents may only be disclosed to third parties with the prior consent of HYMES Networks and the customer must return them to HYMES Networks if the contract is not awarded.
2. Liability restrictions on third parties’ rights:
a) HYMES Networks shall not be liable vis-à-vis the customer for the fact that the contracted services and their use are free of the industrial property rights and copyrights of third parties (hereinafter: the rights of third parties). HYMES Networks is under no obligation to carry out an audit of any possible infringements of industrial property rights caused by the provision of contractual services, unless otherwise agreed in writing.
b) The customer has to ensure he obtains the rights of use that are obviously required for the development and completion of the contractual service before awarding contracts to HYMES Networks.
c) If, when providing the contractual service, HYMES Networks becomes aware of a violation of the rights of third parties, HYMES Networks must inform the customer of this without delay. The customer has to obtain the usage rights from the respective copyright holders.
3. Enforcement of the intellectual property rights of third parties
On account of the infringement of intellectual property rights of another by the contractual services rendered by HYMES Networks services and used according to the contract, HYMES Networks assumes liability vis-à-vis the customer as follows
a) at the option of HYMES Networks, HYMES Networks shall, at its own expense, obtain a right of use for the contractual services affected, change the contractual services so that the property right is not infringed, or replace it. If this is only possible with an unreasonable amount of effort on the part of HYMES Networks, the customer’ is entitled to the statutory rights of withdrawal or reduction.
b) HYMES Networks is obliged to pay damages in accordance with point VIII. (Other claims for damages).
c) The aforementioned warranty obligations of HYMES Networks only exist if the customer immediately notifies HYMES Networks in writing of the claims asserted by third parties, does not acknowledge its own violation and if HYMES Networks reserves the rights to all defensive measures and settlement negotiations. The customer has to draw the attention of the third party to the fact that any possible temporary suspension of use is not linked to an acknowledgment of the alleged infringement.
4. Defects of title:
a) In case of other defects of title, the above provisions shall apply mutatis mutandis
b) HYMES Networks is liable to customers in terms of Section 14 of the German Civil Code (BGB) only for violations of intellectual property rights of third parties, which were caused by the gross negligence or intention of HYMES Networks, its legal representatives or agents. This applies unless otherwise agreed in writing. With regard to the scale of fault, the customer bears the burden of proof.
c) Warranty claims relating to defects in title expire in twelve months from delivery of the contractual service to the customer. This does not apply insofar as the law prescribes longer periods and in cases of injury to life, limb or health or fraudulent concealment of the defect.
VIII. Other claims for damages
1. Liability for intentional and gross negligence
Unless damage is based on injury to the life, limb or health of a person and not on the violation of a fundamental contractual obligation, HYMES Networks shall be liable only for intent and gross negligence. HYMES Networks is also liable to the same extent for breaches of duty by its legal representatives and agents. Vis-à-vis customers who are entrepreneurs within the meaning of Section 14 of the BGB, the aforementioned liability is limited to typically foreseeable damages.
2. Product liability
Liability under the product liability law and the liability arising from any expressly assumed warranty remain unaffected by the above limitations.
IX. Impossibility of the contractual service/contract amendment
Insofar as HYMES Networks is unable to render the contractual service, the customer is entitled to claim damages, unless HYMES Networks is not responsible for this impossibility. The customer’s claim for damages on account of impossibility is limited to 10% of the value of the part of the contractual service that cannot be used according to the contract on account of the impossibility. This limitation shall not apply in cases of intent, gross negligence or injury of life, body or health where mandatory liability exists.
2. Amendment of contract/withdrawal
The contract shall be appropriately amended in good faith if unforeseeable events (force majeure) substantially change the economic importance or the contents of the contractual service or considerably affect the operation of HYMES Networks. Where a contract adjustment is not economically reasonable for HYMES Networks, HYMES Networks has the right to withdraw from the contract.
X. Data protection
XI. Final provisions
1. The exclusive place of jurisdiction and performance for all deliveries and services as well as payments and all disputes arising from the contractual relationship between the parties to the contract, including checks and bills, is Daun, insofar as a jurisdiction clause is permissible.
2. It is agreed that the contractual relationship is exclusively governed by German law, under exclusion of the UN Sales Convention.
3 The transfer of rights and obligations of the customer arising from the contract concluded with HYMES Networks are not effective without the written consent of HYMES Networks.
4. Should any of the above conditions be ineffective, then the validity of the remaining provisions shall not be affected. The invalid condition should be replaced by a provision that legally and economically most closely approximates the intended purpose of the provision.
Daun-Nerdlen, August 2018