I. Terms of Contract
1. CAQ AG Factory Systems furnishes all sales, supplies and other performances exclusively under the following conditions. These conditions apply to all future business relations, even if they are not expressly referred to again. Other general business conditions do not apply to this contract even if we do not explicitly contradict them.
2. All agreements, including special arrangements and supplements, require written confirmation or express written acknowledgement from us. Our employees are not authorized to enter into special verbal agreements or make promises that go beyond the written agreement. If our order confirmation is not repudiated immediately, at the latest two weeks after receipt, then its contents are legally binding.
3. Our offers are not binding, as long as they are not termed final offers.
4. Samples, trials, drawings, figures, specifications concerning types, measurements, standards, and other documents, which are given to the customer in connection with an offer, as well as specifications in brochures become legally binding only when they are accompanied by a specific written agreement. The property rights and copyrights of such documents remain ours. Such documents, in particular samples of software by CAQ AG Factory Systems, software descriptions and documentation that are part of the software may not be duplicated and made accessible to third parties.
5. We are entitled to continually develop the products further; deviations of the supplied product from the ordered product are admissible, as far as they are reasonable in relation to the customer.
6. We reserve the right to make the conclusion of a contract dependent on pre-payment, partial payment, or a security deposit.
1. The prices specified in the order confirmation are binding. In the event that price information is not given, the market prices apply that are current at the time of the order. The prices are valid from the warehouse plus legal sales tax. The cost of customer authorized freight insurance is paid by the customer.
III. Terms of Delivery
1. The specified delivery dates are approximate dates. Delivery target-date terms begin with the date of the order confirmation. A specific and binding date of delivery requires a separate written agreement. Partial deliveries are admissible to a reasonable extent and can be billed separately.
2. We are only violating a delivery target date if the customer has issued, in writing, or a reminder for delivery, and waited an appropriate period after the delivery target-date has passed.
3. If we are forced to delay delivery due to a higher power or any other unforeseeable, circumstance beyond our control, e.g. internal unrest, operational disturbances, strikes, lockouts, missing or delayed shipments of suppliers and subcontractors, and/or prevented from the timely fulfillment of a customer‘s order by suppliers or subcontractors, then the due date of the delivery is extended by the period of time necessary to execute removal of the cause of impediment and by an appropriate recovery time. If delivery becomes impossible or unreasonable for us due to such circumstances, we are no longer obligated to honor the delivery agreement. If the handicap persists longer than two months, we have the right to withdraw from the contract altogether; the customer has the same right; if accepting the product becomes unreasonable due to the delay, he or she can refuse it. We will inform the customer immediately if any such circumstances develop.
4. The amount of liable damage caused by the delay of delivery is limited to 10 % of the net order and services that are affected by the delay. The liability due to intent remains unaffected.
IV. Dispatching and Risk Transfer
1. We select the method and means of transit according to dutiful discretion.
2. Liability (property, price and delay) transfers to the customer as soon as we release the order to the carrier, or any other person or organizations in charge of shipment, no later than the moment the order leaves our facility.
3. Liability also transfers to the customer if delivery is delayed due to factors beyond our control as soon as we have displayed shipping intent.
V. Terms of Payment
1. Payments are due in full within 8 days of receipt of the products. If the customer is a seller, he or she does not have the right to a lien and plea for the unfulfilled contract.
2. A buyer’s right to charge amounts with counterclaims are not valid, unless it is determined that the claim is undisputed or has been validated by a court.
3. Checks and drafts are accepted only as payment of a debt. We reserve the right to refuse any such payment forms. All costs connected to certain payment types will be charged to the customer. We do not accept liability for timely submittal, complaints, notification and dispatching.
4. We can, at any time, require appropriate collateral from the customer against our claims and make fulfillment of our obligations dependent upon presenting or increasing such collateral.
5. Delay of payment for our services begins, as soon as we furnish a reminder for the payment or require payment within a certain time period or at a certain date, even if this is not expressly termed a reminder. We include a 4 % interest payment added to the respective prime interest rate, unless we can prove a higher financial burden or the customer a lower one.
6. If the customer experiences a degradation of his or her credit-worthiness or if such circumstances become known to us, we can make all demands against the customer due immediately, as far as they are not restricted by an oral agreement, and we can hold back all outstanding services and products, match delivery with payment, or demand collateral, even if these demands are governed by other contracts. The same applies, to a delay of payment by the customer unless the customer can prove that no circumstances are present which could put our demands in jeopardy.
7. The customer must check any running account for errors and completeness in statements, billing statements, and balance of invoices. We are allowed to exclude and separately account for subsequent interest charges in the billing statements and balance of invoices. Objections against billing statements and balance of invoices must be raised within a month of receiving the respective statements. Other objections must be raised immediately. If no objections are received within the appropriate time frame, then statements are deemed approved. We will refer to the effects of non-remittance of objections in billing statements, balance statements, and other statements. Legal demands stemming from justified objections after the expiration of this time frame remain unaffected.
VI. Retention of Title
1. We reserve the property rights of all our products up to the time of full payment for such products in any contract. Property rights transfer to the buyer as soon as the bank has honored checks and drafts. For running accounts, property rights of items not fully paid for (products subject to claim) remain with us for collateral against the outstanding sum of money.
2. The customer may only sell products subject to claim limited by such restrictions during the regular course of his or her business. Other sales, especially pawning or transferring products subject to claim to a third party are not permitted. The customer transfers all demands and respective rights, attained from any sale or other transaction, equal to the unpaid amount to us upon signing the respective delivery contract. He or she is entitled to collect the transferred demands. The customer has to give out all information and hand out all necessary documents on demand concerning his or her customer, which we need in order to validate our rights against the aforementioned customer.
3. If the value of demands or collateral exceeds our total demand against products subject to claim by more than 20%, then the customer can require the release or return transfer of the surplus collateral.
4. Authorization of the customer for the sale of the products subject to claim and for the collecting of demands is null and void if terms of payment are not honored, with unauthorized orders, and if insolvency proceedings are proclaimed against the customer. In this case we are entitled to take the products subject to claim into our possession immediately.
5. The customer must notify us immediately if any third parties are making demands against products subject to claim.
6. If we claim our property rights by recovering products subject to claim, we are free to sell or auction off the products subject to claim. Further demands for compensation, including lost profits, are within our range of rights.
VII. Software Products
1. The customer is not entitled to rent or lease out software products. The customer is obligated, in particular, to stay within the limitations stated by the software producer regarding utilization, usage or handling of the software.
2. We are not liable to ensure complete accuracy of the software. Guarantees and liability only apply to the fact that the product is basically useful according to the program description and the user directions. We do not offer any guarantees or liability for software, which was modified by the customer.
3. The customer alone is responsible for correct selection, correct usage, monitoring and the consequences of software usage. This covers also the recording of transactions, generating recovery routines in the case of a malfunctioning of the software as well as safeguards against data loss.
VIII. Claim of Defect, Guarantee, and Statute of Limitation Concerning a Claim
1. The customer must carefully inspect our merchandise immediately for defects, inaccurate amounts, etc. The customer must then immediately file detailed objections in writing, at the latest within two weeks after transfer or delivery. If a defect present before transfer shows up only later (hidden defect), then this defect must be claimed in writing immediately after its discovery, at the latest within two weeks. The same applies to shipments of products other than those ordered.
2. If the customer does not fulfill his or her obligations of inspection and notification in a sufficient timely manner, then all rights and demands in connection with defects, erroneous amounts, etc. become exempt, unless we are found purposefully negligible.
3. We will provide repairs or replacements for warranted claims according to our discretion. If a defect is not replaced or repaired within an appropriate time frame, then the customer can demand either a discount on the product or a cancellation of the contract. The customer can exercise a right of lien only in an appropriate and reasonable relation between impediment and price.
4. If we improved a product or sent a replacement, then we will be liable for the new or improved product according to the sales and shipment terms of the original product.
5. The customer loses all warranty claims, if he or she installs, stores, treats, alters, or uses the products supplied by us inappropriately, unless he or she can prove that this cannot be the cause for the defect in question.
6. If the customer is a full buyer/seller, then we can transfer our warranty claims to the customer for parts of the product which were not manufactured by CAQ AG Factory Systems, and we can refer him or her to the original manufacturer concerning guarantee issues. We are only liable for such parts if the customer has already brought the issue of guarantee before a court.
7. All claims due to or connected to defects are subject to a 6 months statute of limitation from the time of transfer of the products. Demands due to illegal actions or fraud are excluded.
8. Warranty claims against us are not transferable and can be made valid only by the customer.
IX. General Limitation of Liability
1. Compensation for damages of any kind, including those connected to damages caused by defects or inappropriate handling are unrecoverable as far as this is not explicitly contradicted in the general terms of delivery and sales. This applies also to demands made against our associates. Liability for gross negligence, for guaranteed features, and liability according to the Product Liability Law remains unaffected.
2. In each case liability is limited to typical, foreseeable damage.
X. Export regulations
The products delivered by us are intended for the selling in the country of the customer. If the customer wants to export the delivered products, he or she is responsible for the adherence to the relevant regulations of the Federal Republic of Germany. If the customer infringes against any export control regulation, he or she is responsible without reservation for any demand made by us.
1. If individual regulations should become or be totally or partially invalid, then this neither affects the validity of other regulations nor the relevancy of sales contracts, which are based on these general terms of delivery. An invalid regulation has to be replaced by a regulation which approximates the desired economic purpose if possible.
2. The law of Germany applies to everything herein. The application of the United Nations Convention for the International Sale of Goods is excluded.
3. The customer agrees to be named as a customer in advertisements of CAQ AG Factory Systems without express consent and without monetary compensation.
4. We fill our deliveries at Germany 55494 Rheinböllen, in the case of supplies from warehouses the respective warehouse. This is the location for the customer‘s obligation to pay and his or her location or normal residence at the time when the obligation is confirmed.
5. For full buyers/sellers, Bad Kreuznach is the exclusive area of jurisdiction. This applies to legal inquiries concerning certificates, checks, and drafts. We can also sue, however, at another general or special area of jurisdiction at our discretion
6. All customers declare their express consent to receive information and advertisements of CAQ AG Factory Systems or affiliated companies via mail, and/or via e-mail without prior requests or agreements.
1. Subject of the Contract
Subject of the contract is the software program, recorded on the data storage device or provided via download, the program description and operating instructions, as well as other appropriate written material. They are referred to as „software“ from here forward. CAQ AG Factory Systems makes it known that it is not possible, at the current stand of technology, to create computer software in such a way that it operates completely error free in all applications and combinations. The subject of the contract is therefore only software, which is basically useful as defined by the program description and the operating instructions.
2. Range of Use
CAQ AG Factory Systems grants you the simple, not exclusive, and personal right for the duration of the present contract (referred to in the following as „license „), to use the enclosed copy of the software. All licenses of the software are “floating licenses” – therefore your are allowed to use the software with as many users simultaneous as you acquired licenses. Depending on the license model you chose your are either only allowed to use the software on one site or allowed to use the software at multiple sites in your complete company. Any usage outside of these guidelines is not admissible.
3. Special Limitations
The license holder is forbidden to amend, translate, reverse engineer, decompile, or disassemble the software, to create any projects derived from the software, or to reproduce the accompanying written material without explicit previous written consent of CAQ AG Factory Systems.
4. Ownership of Rights
By purchasing this product, you gain ownership of the physical data storage device, which contains the software only. Ownership of rights to the software itself is not connected to any such purchase. The delivered or to be delivered software packages are the intellectual property of CAQ AG Factory Systems. CAQ AG Factory Systems reserves all rights connected to publication, reproduction and duplication, revision, and usage of the software.
5. Transfer of User Rights
The user rights to this software can only be transferred to a third party with explicit previous written consent from CAQ AG Factory Systems and under the conditions of this contract. Giving the software as a present, as well as renting or leasing of the software is prohibited.
6. Duration of Contract
This contract is valid for an undetermined period of time. The right of the license holder to use this software becomes invalid automatically, without prior notice, when he or she violates the provisions outlined in this contract. When usage rights expire, he or she is obliged to destroy the original data storage, all copies of the software including any amended copies as well as any accompanying written material (exempted from this are backups).
7. Damages Due to Contract Violations
CAQ AG Factory Systems hereby declares that you are liable for resulting damages to CAQ AG Factory Systems that stem from a violation of these contract provisions and occur due to copyright violations.
8. Changes and Updates
CAQ AG Factory Systems has the right to produce updates of the software according to its own judgment. CAQ AG Factory Systems is not obligated to make updates of the program available to license holders that do not have a valid TSP contract or have not paid the update fee.
9. Warrantee and Liability of CAQ AG Factory Systems
a) CAQ AG Factory Systems guarantees that no defects are present at the time of the transfer of the data storage device, which contains the software and the accompanying hardware during normal usage conditions and normal service.
b) If the data storage device or the delivered hardware should be defective, then the buyer can expect an exchange during the warrantee period of 6 months after delivery.
c) If an error as described in 9 b) cannot be corrected by an exchanged product during a certain time period, than the buyer can either demand a reduction in price or cancellation of contract.
d) The Software does not assume liability due to the reasons stated under 1. for any software defects. CAQ AG Factory Systems is not responsible to assure that the software suits the buyers needs and purposes or that it will work with other chosen programs. The buyer assumes responsibility for the correct choice of software and the consequences of usage, as well as for any results, actual and planned. The same applies for the accompanying written material. If the software is not basically usable in the sense of 1., then the buyer has the right to cancel the contract. CAQ AG Factory Systems has the same right if the production of software in order to fulfill the clause under 1. is not possible with due effort.
e) CAQ AG Factory Systems is not liable for damages unless they are caused due to negligence of CAQ AG Factory Systems. Liability in the case of written guarantees of features is not part of this. Liability for damages caused by defects, which are not part of the assurance, are excluded.
10. This contract is exclusively subject to the laws of the Federal Republic of Germany.