AGB Diana June 11, 2023

- Software & Hardware -

§ 1 General terms of contract

(1) Deliveries, services and offers of QuinScape GmbH (hereinafter referred to as QuinScape) are always subject to change based on these terms and conditions. Any conflicting terms and conditions of the customer shall not apply.
2. Subsidiary agreements, assurances and other agreements made prior to or upon placing a written order must also be made in writing in order to be effective. Amendments or supplements to this contract must be confirmed in writing by authorized representatives of the Customer and QuinScape in order to be effective.
3. The requirement of the written form can only be waived for ancillary agreements, assurances, amendments or supplements to the contract in writing.
4. If a sales partner of QuinScape has contributed to an order, QuinScape does not recognize objections of the Customer that derive from an additional contractual relationship with a sales partner, unless the contracts are related.

§ 2 Terms of delivery and scope of services

1. the delivery time is determined by the contractual agreement; as a rule by a project plan communicated to the Purchaser in the order confirmation. QuinScape's compliance with the project plan requires that the Purchaser, for its part, has fulfilled its contractual obligations (in particular, timely payment of contractually agreed advance payments and provision of all requested information deemed necessary by QuinScape for the performance of the contract). Subsequent requests of the Purchaser for changes or additions extend the project duration stated in the project plan to a reasonable extent.
2. QuinScape is not responsible for delays in delivery and performance due to events that make the completion of the project significantly more difficult or impossible, such as force majeure, export and import bans, strike or lockout, material procurement difficulties, operational disruptions, even if they occur at suppliers or sub-suppliers of QuinScape. In such a case, QuinScape is entitled to extend the project duration stated in the project plan to a reasonable extent.
3. If QuinScape is finally unable to perform the contractually agreed service, although it is not responsible for the impediments to performance, QuinScape may withdraw from the contract without this giving rise to any claims on the part of the Purchaser.
4.QuinScape reserves the right to technical and creative deviations in descriptions and information in catalogs, brochures and written documents to the extent customary in the trade, which become necessary in the course of technical progress or changes in the market situation.

§ 3 Retention of title

1. QuinScape retains ownership of the hardware and software as well as of the created data until all claims to which QuinScape is entitled against the Purchaser now or in connection with the hardware and software in the future have been settled.
2. In the event of seizure or other impairments by third parties, the Purchaser is obligated to immediately point out the ownership of QuinScape. Furthermore, he is obligated to inform QuinScape immediately by telephone or fax as well as subsequently in writing.
3. In case of processing or combination of the hardware and/or software with other goods not belonging to QuinScape, co-ownership of the item arises for QuinScape in proportion to the value of the hardware and/or software to the other goods.
4. The assertion of the retention of title as well as the seizure of the delivery item by QuinScape is not considered a withdrawal from the contract.

§ 4 Payment obligations of the customer

If costs for installation, assembly and equipment are required to make the hardware and software ready for operation, these are determined according to the remuneration agreed with QuinScape in each case. They will be invoiced separately.
2. All support services, in particular installation and demonstration of operational readiness, instruction, training or consulting, will be remunerated on a time and material basis. The hourly rates, travel and incidental expenses are based on the remuneration agreed with QuinScape.
3. Price increases and increases in the statutory value added tax shall be borne by the Purchaser if the hardware and software are delivered later than six months after conclusion of the contract as agreed. The same applies if the delivery is made later than six months after
conclusion of the contract for reasons for which the purchaser is responsible.
4. Information in the contract about financing, e.g. by leasing, are only terms of payment. This shall not affect the contract as such.

§ 5 Set-off, assignment and right of retention

1. the Customer may only offset a counterclaim if it is undisputed by QuinScape or has been legally established.
2. the Customer may not assert a right of retention based on another contractual relationship with QuinScape.

§ 6 Transfer of risk

The risk of accidental loss shall pass to the Purchaser on the day of installation. In case of shipment, the risk of accidental loss shall pass to the Purchaser upon handover to the carrier.

§ 7 Obligation to examine and give notice of defects; warranty

1. the buyer's claims for defects presuppose that he has fulfilled his obligations to inspect and give notice of defects (§§ 377, 381 HGB). Irrespective of this obligation to inspect and give notice of defects, the Buyer shall notify us in writing of any obvious defects (including incorrect and short deliveries) within two weeks of delivery, whereby timely dispatch of the notification shall suffice to meet the deadline. If the purchaser fails to make the proper inspection and/or notification of defects, our liability for the non-notified defect shall be excluded. The software/data are then deemed to be approved in view of the respective defect and the performance of QuinScape is deemed to be accepted.
2. In case of defective delivery or performance, QuinScape is entitled to choose between free rectification, subsequent delivery or replacement of the defective parts. If the rectification or replacement delivery finally fails, the Purchaser is entitled to a reduction of the purchase price (abatement) or
rescission of the contract (conversion). The right of conversion exists in the case of software defects that could not be remedied after repeated attempts at rectification and/or subsequent delivery only if a reasonable user would also demand this in good faith.
QuinScape can also fulfill its obligation to rectify errors by providing a newer program version. In the case of serious errors, QuinScape may provide the Purchaser with corrective measures or create a workaround solution until the error has been corrected, if this is reasonable for the Purchaser.
3. In the case of a final cancellation of the contract (rescission), the Purchaser is obligated to return the original diskettes or CD-ROMs and the like as well as all copies of the Software including the created data, as well as the written materials to QuinScape or to delete and destroy them completely. The Purchaser must confirm to QuinScape in writing within two weeks that all existing copies have been deleted. Original software from third party suppliers must be returned to QuinScape immediately in complete condition.
4. The Purchaser may only use the delivered software on the hardware/software environment approved and declared suitable for this purpose by QuinScape. If the errors that occur are due to circumstances for which QuinScape is not responsible, the warranty does not apply. This applies e.g. in case of malfunctions due to
use of unsuitable operating material or if the Purchaser has not complied with the installation requirements.
5. The warranty does not apply if the Purchaser has made changes or interventions in the hardware and/or software or in the created data; unless the Purchaser proves in connection with the error message that the intervention was not the cause of the error.
6. There is no warranty for used hardware. If a third party asserts that its property rights, in particular copyrights, would be infringed by the software delivered by QuinScape, QuinScape shall indemnify the Purchaser against claims for damages of such third parties. In case of slight
negligence, QuinScape is not liable for compensation of other damages.
7. The Purchaser is obligated to immediately report to QuinScape any errors that occur during contractual use in a comprehensible form with information suitable for error correction. If requested by QuinScape, this report must be made in writing. The
Purchaser shall support QuinScape in the elimination of errors within the scope of what is reasonable.
8. In the case of hardware and/or software, the elimination of errors shall take place at the registered office of QuinScape. The Purchaser shall deliver the hardware properly packed including the connecting cables. For the purpose of error correction on the software, QuinScape will send the Purchaser a correction measure for transfer. The Purchaser is obligated to insert the sent corrective measures into the existing programs or to transfer the corrected programs again and, if necessary, to rearrange files, provided that QuinScape clearly describes the steps to be taken and the Purchaser can handle the transfer properly.
9. QuinScape does not assume any warranty for defects that are caused by software that was not created by QuinScape.

§ 8 Limitation

(1) Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
2. However, if the goods are a building structure or an item that has been used for a building structure in accordance with its customary manner of use and has caused the defectiveness thereof (building material), the limitation period shall be 5 years from delivery in accordance with the statutory regulation (§ 438 para. 1 no. 2 BGB). Also unaffected are special statutory regulations for claims in rem for the surrender of goods by third parties (§ 438 para. 1 no. 1 BGB), in the event of fraudulent intent on the part of the Seller (§ 438 para. 3 BGB) and for claims in supplier recourse in the event of final delivery to a consumer (§ 479 BGB).
3. The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act shall remain unaffected in any case. Otherwise, the statutory limitation periods shall apply exclusively to the Purchaser's claims for damages.

§ 9 Liability

1. QuinScape is not responsible for content that the Purchaser makes available to QuinScape or that QuinScape creates at the express request of the Purchaser and contrary to any concerns expressed regarding legal admissibility. The Purchaser indemnifies QuinScape from any liability towards third parties and undertakes to compensate QuinScape for any damages incurred by QuinScape as a result of claims asserted by a third party due to the possible infringement of rights.
2. Claims for damages arising from culpa in contrahendo, positive breach of contract as well as tort against QuinScape and its vicarious agents/associates are excluded, unless there is intent or gross negligence. If QuinScape is only guilty of slight negligence, we are only liable
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the compliance with which the contractual partner regularly relies and may rely); in this case, however, our liability is limited to the compensation of the foreseeable, typically occurring damage.
3The limitations of liability resulting from paragraph 2 shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same applies to claims of the Purchaser according to the Product Liability Act.
4. Properties are only deemed warranted to the Purchaser if this has been expressly agreed in writing between QuinScape and the Purchaser under the designation "warranted property". The liability for loss of data is limited to the typical recovery effort that would have occurred if backup copies had been made regularly and in accordance with the risks. A daily backup is considered to be the minimum standard. In addition, the Customer must make an additional, prompt and complete data backup before each maintenance service by QuinScape. The Purchaser bears the risk of the required data backup. QuinScape is not liable for indirect damages and consequential damages, lost profits and lost savings.
5. The user documentation does not represent warranted characteristics.
6. The liability for data loss is limited to the typical recovery effort that would have occurred if backup copies had been made regularly and in accordance with the risks. A daily backup shall be regarded as the minimum standard. In addition, the Customer must make an additional, prompt and complete data backup before each maintenance service by QuinScape. The Purchaser bears the risk of the required data backup. QuinScape is not liable for indirect and consequential damages, lost profits and missed savings.
7. The Purchaser is responsible for the selection of hardware and software and the intended results. QuinScape does not know which use the Purchaser intends to make of the hardware and software in detail.
8. QuinScape is not liable for errors of a direct or indirect nature caused by software that was not created by QuinScape.
9. Due to a breach of duty that does not consist of a defect, the Purchaser can only withdraw or terminate the contract if we are responsible for the breach of duty. A free right of termination of the buyer (especially according to §§ 651, 649 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

§ 10 Copyrights

1. the purchaser acknowledges the copyrightability of the software supplied by QuinScape including the user documentation and other documents supplied by QuinScape and considers them to be trade secrets of QuinScape. The Purchaser grants QuinScape the unrestricted rights to publish and reproduce the created data.
2. QuinScape may make changes to the hardware and software as long as these changes are not fundamental and the contractual purpose is insignificantly restricted thereby.
3. The Purchaser receives the non-transferable and non-exclusive right to use the provided software programs and the data created by QuinScape. A transfer to third parties for the purpose of publication and/or duplication is not permitted. The Purchaser may only sell the duplication pieces to a third party if he/she renounces the use of the software programs and the third party commits himself/herself to the program protection by written declaration to QuinScape as well as recognizes the limits of the right to use the duplication pieces as they exist for the Purchaser. In any case, the transfer of the duplication pieces to third parties requires the prior written consent of QuinScape.
4. The Purchaser may not modify the software products. QuinScape does not owe the delivery of source programs. The making of copies, transcripts or other reproductions of the software products by the Purchaser is permitted exclusively for its own use for internal backup and documentation purposes. The Purchaser may only use the delivered software on one data processing system (configuration) at a time. Use is only permitted on the number of end devices specified in the contract and only for the maximum number of users specified in the contract. The transfer of the software products to another data processing system is only permitted with the written consent of QuinScape.
5. QuinScape always provides software products as object programs. Even partial conversion into source programs by the Purchaser is not permitted. The software products of QuinScape constitute trade secrets. An exception applies in the case of § 69 e) Copyright Act.
6. The Purchaser may not rent, lend or otherwise make available to third parties software products of QuinScape without the consent of QuinScape. If the Purchaser violates the regulations on software program protection stated in these terms and conditions, the Purchaser is obligated to pay three times the amount of the transfer fee. If the Purchaser violates one of the regulations on software program protection contained in these terms and conditions, QuinScape is entitled to prohibit the use of the software program with immediate effect. In order to control the proper exercise of its right of use, the Purchaser shall grant access to its premises to an expert who is bound to secrecy and who is commissioned by QuinScape, after prior notice.

§ 11 Jurisdiction agreement

If the Purchaser is a fully qualified merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contractual relationship is the registered office of QuinScape. However, QuinScape is also entitled to take legal action at the headquarters of the Purchaser.

§ 12 Export control regulations

The export of the hardware and software is subject to German and US export control regulations. It requires the approval of the competent authorities.

§ 13 Partial Invalidity and Severability Clause

1. if one of the provisions of these terms and conditions is or becomes invalid, this shall not affect the validity of the remaining provisions.
2. invalid provisions shall be replaced by such valid provisions that are as close as possible to the intended economic purpose of the provision.

Get in touch with us.
Dataciders Ltd.

Wittekindstrasse 30
44139 Dortmund

Write to us!