General Terms and Conditions for Business Transactions with Entrepreneurs
§ 1 Scope of application
(1) All contracts for deliveries and services concluded by HWS Informationssysteme GmbH (hereinafter referred to as HWS) with entrepreneurs, legal entities under public law or special funds under public law shall be subject exclusively to the following terms and conditions. Conflicting or deviating terms and conditions of the contractual partner shall only be recognized by HWS if HWS expressly agrees to their validity in writing. This shall also apply if HWS does not separately object to such terms and conditions in individual cases or performs a delivery or service without reservation.
(2) These terms and conditions shall also apply to all future transactions with the contractual partner, insofar as these are legal transactions of a related nature.
(3) For the purposes of these terms and conditions, “goods” shall mean all items to be provided to the contractual partner in accordance with the contract, including software, even if the goods are provided in a non-physical form (e.g. by means of electronic transmission).

§ 2 Offer and conclusion of contract
(1) Our offers are subject to change and non-binding. Errors and product availability are reserved.
(2) If an order is to be regarded as an offer according to § 145 BGB, HWS can accept it within two weeks. Offers of the contractual partner are accepted if HWS confirms them in writing, by fax or e-mail or carries out the delivery or service.
(3) The contractual partner is obliged to check our offers carefully for correctness and expediency. This applies in particular to assumptions made in our offers, on which the description of the delivery/service and the calculation were based.

§ 3 Documents provided
HWS reserves the property rights and copyrights to all documents provided to the contractual partner in connection with the placement of the order, such as data carriers, documentation, calculations, drawings, etc.. These documents may not be made accessible to third parties unless HWS has given its express written consent to the contractual partner. HWS is entitled to demand the return of these documents at any time.

§ 4 Prices and payment
(1) Unless otherwise agreed in writing, our prices are quoted in EUR ex works plus shipping, insurance, packaging and installation costs and plus VAT at the applicable rate. Discounts, rebates and other reductions require a special written agreement.
(2) Payment of the purchase price must be made exclusively to the account specified in the invoice.
(3) Unless otherwise agreed, the purchase price must be paid within 10 days of delivery. Interest on arrears shall be charged at a rate of 8% above the respective base interest rate per annum. We reserve the right to assert higher damages caused by default.
(4) Unless a fixed price agreement has been made, HWS reserves the right to make reasonable price changes due to factors such as labor costs, material costs, exchange rates, price increases of the supplier or comparable factors which were not foreseeable for HWS and which occur 6 weeks or later after conclusion of the contract. At the request of the contractual partner, HWS shall provide evidence of these circumstances.

§ 5 Offsetting and rights of retention
The contractual partner shall only be entitled to set-off if his counterclaims have been legally established or are undisputed. The contractual partner is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.

§ 6 Delivery, delivery time, delay and impossibility
(1) HWS reserves the right to deviate from the agreed delivery as is customary in the trade, insofar as the delivery achieves the agreed performance data and is suitable for the contractually intended purpose.
(2) Partial deliveries and partial services and corresponding invoicing are permissible if they are not unreasonable for the contractual partner.
(3) Deadlines or dates for deliveries and services specified by HWS are non-binding, unless they are expressly agreed and designated as a binding deadline/date.

(4) Impediments to delivery for which HWS is not responsible and which were not foreseeable at the time of conclusion of the contract shall lead to an extension of the delivery and performance deadlines by the duration of the impediment and by a reasonable start-up time after the end of the impediment. This applies in particular to events such as non-delivery, incorrect or untimely self-delivery, force majeure, war, natural disasters, impeded imports, lack of energy or raw materials, official intervention, labor disputes, traffic or operational disruptions as well as the breach of cooperation duties or obligations of the contractual partner. HWS shall immediately inform the contractual partner of such hindrances and their expected duration. If the force majeure lasts uninterruptedly for more than three months, both contractual parties shall be released from their performance obligations.

§ 7 Transfer of risk upon shipment
If the goods are dispatched to the contractual partner at the latter’s request, the risk of accidental loss or accidental deterioration of the goods shall pass to the contractual partner upon dispatch to the contractual partner, at the latest when the goods leave the factory/warehouse. This shall apply irrespective of whether the goods are dispatched from the place of performance or who bears the freight costs.

§ 8 Retention of title
(1) HWS shall retain title to the delivered goods until all claims arising from the delivery contract have been paid in full. This shall also apply to all future deliveries, even if HWS does not always expressly refer to this.
(2) The contractual partner is obliged to treat the goods subject to retention of title with care, to store them properly and to insure them against theft, fire, water, breakage and other damage at his own expense in accordance with normal business practice. If maintenance and inspection work has to be carried out, the contractual partner must carry this out in good time at its own expense.
(3) As long as ownership has not yet been transferred, the contractual partner must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties and provide us with all documents necessary to enforce the ownership rights. If the third party is not in a position to reimburse HWS for the judicial and extrajudicial costs incurred in this connection, the contractual partner shall be liable for the loss incurred by HWS.
(4) The contractual partner is entitled to resell the reserved goods in the normal course of business. No sale in the normal course of business shall be deemed to exist in particular if the contractual partner assigns or pledges the reserved goods as security.
(5) The contractual partner hereby assigns to HWS as security any claims of the contractual partner against third parties arising from a resale of the reserved goods or any other legal reason (e.g. liability insurance), including all ancillary rights, in the amount of the final invoice amount agreed with HWS (including VAT). This assignment shall also apply insofar as the reserved goods are processed or installed; in this case, the assignment shall cover that part of the value of the claim which the reserved goods have in relation to the total item. HWS accepts the assignment of the claim.
The contractual partner remains authorized to collect the claim even after the assignment. Our authorization to collect the claim ourselves remains unaffected. However, HWS shall not collect the claim as long as the contractual partner fulfills his payment obligations from the collected proceeds, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed and payments have not been suspended.
(6) HWS undertakes to release the securities to which HWS is entitled at the request of the contractual partner if their value exceeds the claims to be secured by more than 10 %.

§ 9 Warranty
(1) Warranty rights of the contractual partner presuppose that he has properly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code). A proper inspection includes in particular the inspection for completeness (also with regard to the documentation), external integrity, defects and other deviations.
(2) Claims for defects shall become statute-barred one year after delivery of the goods supplied by HWS to the contractual partner, unless claims for injury to life, limb and health are concerned.
(3) If, despite all due care, the delivered goods show a defect which already existed at the time of the transfer of risk, HWS shall be entitled to claim compensation.
(4) If the supplementary performance fails and the contractual partner has set a reasonable deadline which allows at least two attempts at rectification, the contractual partner may – without prejudice to any claims for damages – withdraw from the contract or reduce the remuneration.
(5) Notwithstanding the above provisions, in case of delivery of hardware or standard software of third party manufacturers, HWS may assign corresponding claims of HWS against sub-suppliers or manufacturers to the contractual partner for the purpose of subsequent improvement or replacement delivery. In this case, the contractual partner can only assert claims for defects against HWS (subsequent performance, reimbursement of expenses after self-performance, compensation instead of performance, withdrawal or reduction) if he has previously taken unsuccessful action against the upstream supplier or manufacturer, unless this is unreasonable for the contractual partner (e.g. due to insolvency of the upstream supplier or manufacturer). HWS shall provide the contractual partner with the necessary information and contact details.
(6) Claims for defects shall not exist in the event of only insignificant deviations from the agreed quality, only insignificant impairment of usability, incorrect assembly or commissioning by the contractual partner or third parties, natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive use, unsuitable operating materials or due to special external influences (e.g. temperature, humidity, voltage fluctuations, extraordinary physical or electrical stress, lightning, static electricity) which are not assumed under the contract. (e.g. temperature, humidity, voltage fluctuations, extraordinary physical or electrical stress, lightning, static electricity) which are not assumed under the contract. If improper repair work or modifications are carried out by the contractual partner or third parties, no claims for defects shall exist for these and the resulting consequences.
(7) Claims of the contractual partner for expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor and material costs, are excluded if the expenses increase because the goods delivered by HWS have subsequently been moved to a location other than the branch office of the contractual partner, unless the transfer corresponds to their intended use.

§ 10 Warranty
If the manufacturer of the goods provides a guarantee, HWS shall pass this on to the contractual partner. In order to safeguard warranty claims, the contractual partner shall contact the manufacturer directly in the event of the occurrence of faults/defects covered by the warranty and shall observe the manufacturer’s warranty provisions.

§ 11 Liability and data backup
(1) In all cases of contractual and non-contractual liability, in particular impossibility, default, breach of contract, breach of duties during contract negotiations and tort, HWS shall pay damages exclusively in accordance with the following § 11 (2) to § 11 (9):
(2) In the event of intent in full, as well as in the event of fraudulent misrepresentation or in the absence of a quality for which HWS has given a guarantee.
(3) In the event of gross negligence, only to the amount of the damage typical for the contract and foreseeable at the time of conclusion of the contract, which was to be prevented by the breached obligation.
(4) In the case of damage resulting from injury to life, limb or health, liability shall be unlimited in amount, even in the case of simple negligence.
(5) Liability under the Product Liability Act remains unaffected.
(6) In the event of a breach of an essential contractual obligation, HWS shall be liable, if none of the cases mentioned in clauses (2) to (5) applies, limited to the amount of damage typical for the contract and foreseeable at the time of conclusion of the contract.
(7) Any further liability for damages is excluded, in particular liability without fault.
(8) If the damage is due to a fault of HWS as well as a fault of the contractual partner, the contractual partner must allow his contributory negligence to be taken into account.
(9) The contractual partner is responsible for a regular backup of his data. The data backup shall be carried out in any case prior to the provision of services by HWS. In the event of a loss of data for which HWS is responsible, HWS shall therefore be liable, if none of the cases mentioned in clauses (2) to (5) applies, limited to the amount of the costs that would have been incurred if the data had been properly backed up by the contractual partner, in particular the costs of duplicating the data from the backup copies to be made by the contractual partner and for the restoration of the data that would have been lost even if the data had been properly backed up.

§ 12 Software
(1) The terms of use and warranty provisions for software supplied by HWS shall be governed by the relevant provisions of the respective software manufacturer, in particular the software license agreement between the software manufacturer and the end user.
(2) The contractual partner has informed himself about the essential functional features of the software and bears the risk whether it corresponds to his wishes and needs; he has to inform himself about questions of doubt by employees of HWS prior to the conclusion of the contract.
(3) The contractual partner shall be solely responsible for setting up a functional hardware and software environment for the delivered software, which is also sufficiently dimensioned taking into account the additional load caused by the delivered software.
(4) The contractual partner shall thoroughly test the software for freedom from defects and usability in the existing hardware and software configuration prior to its use.
(5) Insofar as HWS has further performance obligations beyond the provision of the software, the contractual partner shall cooperate to the necessary extent free of charge, e.g. by providing employees, work rooms, hardware and software, data and telecommunication facilities.
(6) The contractual partner shall grant HWS access to the delivered software for troubleshooting purposes, at the contractual partner’s discretion directly and/or by means of remote data transmission.
(7) The contractual partner shall take reasonable precautions in the event that the software does not work properly in whole or in part (e.g. by daily data backup, fault diagnosis, regular review of data processing results).
(8) If the contractual partner does not expressly point this out in advance, HWS may assume that all data of the contractual partner with which HWS may come into contact are backed up.
(9) The contractual partner shall bear any disadvantages and additional costs resulting from a breach of these obligations.

§ 13 Miscellaneous
(1) This contract, its interpretation and any legal relationships in connection with this contract shall be governed exclusively by German law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and to the exclusion of the provisions of German law which refer to other legal systems.
(2) The place of performance and exclusive place of jurisdiction for all disputes arising from this contract shall be the registered office of HWS. However, HWS is also entitled to sue the contractual partner at his place of business.
(3) Should individual provisions of this contract be or become invalid or contain a loophole, the remaining provisions shall remain unaffected.

(Status: September 2018)