GTC

9. cooperation of the contractual partner
All preparatory measures for the installation of a computer system, such as laying cables or installing sockets, shall be carried out by the customer at his own expense and responsibility. Additional expenses incurred by KONSULTEC GMBH due to faulty or inadequate preparatory measures shall be borne by the customer. If the measures are not carried out on time, the deadline for delivery or performance shall be extended in accordance with the new agreement to be reached between the customer and KONSULTEC GMBH. If such an agreement is not reached, the rights of KONSULTEC GMBH under Section 10 of these terms and conditions remain unaffected.
The customer shall set up the working environment of the delivery item in accordance with the specifications of KONSULTEC GMBH or the manufacturer.
The customer shall take appropriate measures in the event that the delivery item does not work in accordance with the contract or services are not performed in accordance with the contract, in particular by means of backup procedures, data backup, continuous review of the results, fault diagnosis and detailed description of the fault pattern. It must be possible to reconstruct data from machine-readable data material with reasonable effort.
At the request of KONSULTEC GMBH, the customer shall provide storage space, data and telecommunications equipment and the personnel required for reasons of accident prevention free of charge during the fulfillment of the contract. Line costs shall be borne by the customer.
The customer shall be involved in particular in the specification of services and in tests. The customer shall provide KONSULTEC GMBH with access to the delivery item by means of remote data transmission, insofar as this is reasonable for the customer.
The customer shall only use accessories and equipment together with the delivery items that comply with the specifications of the manufacturer of the delivery item.

10. handover and acceptance
The customer is obliged to accept the goods in accordance with the contract and, insofar as the law on contracts for work and services applies, to accept the delivery and service.
If partial works are defined in the contract, the customer is obliged to accept the partial works provided by KONSULTEC GMBH. When accepting the services performed and rendered at a later date, the only thing that is checked is whether the parts accepted earlier also interact correctly with the parts.
If the customer is in default of acceptance of the delivery items or services for longer than fourteen days from receipt of the written notification of availability from KONSULTEC GMBH, KONSULTEC GMBH may set the customer a grace period of fourteen days to accept the delivery items or services.
After unsuccessful expiry of the grace period, KONSULTEC GMBH is entitled to withdraw from the contract by written declaration and to demand compensation for damages and reimbursement of expenses if the customer is responsible for the non-acceptance of the delivery items or the service.
There is no need to set a grace period if the customer seriously and definitively refuses acceptance or is obviously unable to fulfill his payment obligation under the contract within this period.
If KONSULTEC GMBH demands compensation for damages, this shall amount to 10% of the price of the delivery items or service. The amount of damages shall be higher if KONSULTEC GMBH proves that the damages are higher. For its part, the Customer is expressly permitted to prove that KONSULTEC GMBH has incurred less damage.
In the event of default of acceptance by the Customer, KONSULTEC GMBH may demand compensation for the additional expenses that it had to incur for the unsuccessful notification of readiness and for the storage and preservation of the delivery items.

11. material defects in deliveries and work services
According to the current state of the art, the error-free usability of hardware, standard and individual software and firmware cannot be guaranteed. KONSULTEC GMBH does not guarantee that the program functions of the software selected by the customer will meet his requirements or work together in the selection made by him.
In the case of deliveries of goods, the customer must carefully inspect the delivery item immediately after receipt and notify KONSULTEC GMBH in writing of any defects immediately, but no later than seven working days after receipt, or seven working days after they become apparent in the case of hidden defects. Work services must be accepted by the customer immediately after performance; acceptance cannot be refused due to insignificant defects. In the event of a breach of the above obligations, the customer’s claims for subsequent performance are excluded.
In the event of defects in the delivery item that are reported in good time, work performance that is not accepted or only accepted subject to reservation and in the event of defects that are not known at the time of acceptance, the customer is initially entitled to rectification or replacement delivery/service at KONSULTEC GMBH’s discretion, unless KONSULTEC GMBH has expressly agreed otherwise in the product-specific conditions. KONSULTEC GMBH shall only bear the necessary expenses, such as wages, material, transportation and travel costs, insofar as these expenses are not increased by the fact that the object of delivery or service was subsequently moved to a location other than the agreed place of delivery or service, unless this relocation corresponds to the intended use. If the delivery item is software, the instruction to bypass the software defect is sufficient rectification. Replaced parts become the property of KONSULTEC GMBH and must be returned to KONSULTEC GMBH.
If KONSULTEC GMBH is unable to rectify the defect within a reasonable period of time to be set by the customer, or if the rectification or replacement delivery/service fails, the customer may, without prejudice to any claims for damages or reimbursement of expenses in accordance with Section 15, demand a reduction in the purchase price or – if the breach of duty by KONSULTEC GMBH is not only insignificant – withdraw from the contract.
The warranty obligation of KONSULTEC GMBH for material defects expires if the object of delivery or service has been modified by the customer without authorization, in particular by installing third-party parts, in the case of software by reprogramming, or if the customer uses data carriers, operating materials and other device-specific accessories during the warranty period that do not correspond to the required quality level of the manufacturer of the object of delivery, unless the customer proves that the defect is not attributable to these measures. Only in urgent cases of danger to operational safety or to prevent disproportionately large damage does the customer have the right to rectify a defect himself or have it rectified by a third party and to demand reimbursement of the necessary costs from KONSULTEC GMBH. The same applies if KONSULTEC GMBH is in default with the rectification of a defect. In all these cases, KONSULTEC GMBH must be notified immediately.
KONSULTEC GMBH does not provide any warranty for damage and malfunctions that are due in particular to natural wear and tear, incorrect installation or commissioning by the customer, improper use and operating errors, faulty or unsuitable power supply, operation with the wrong type of current or voltage, fire, lightning, explosion, moisture and failure to carry out necessary maintenance measures or those recommended by the manufacturer. The claim for subsequent performance also lapses if the serial number, types, manufacturer’s designation or other markings individualizing the delivery item have been removed or made illegible.
Claims for defects – including claims for damages and reimbursement of expenses due to defects, unless they are based on intent or gross negligence on the part of KONSULTEC GMBH – lapse twelve months after delivery (in the case of deliveries) or acceptance (in the case of work services). This does not apply if the law prescribes a longer limitation period, e.g. in accordance with § 479 para. 1 BGB (recourse claims for the purchase of consumer goods). KONSULTEC GMBH shall be liable for replacement parts or rectification of defects until the expiry of the limitation period applicable to the original delivery or service item.
In the event of complaints about defects, payments by the customer may only be withheld to an extent that is in reasonable proportion to the defects that have occurred if the customer’s claims are undisputed or have been legally established. If the notice of defects is unjustified, KONSULTEC GMBH is entitled to demand reimbursement of the expenses incurred by KONSULTEC GMBH from the customer.

12. supplementary special provisions for the purchase of software and
the creation of software
In the case of software, it is not possible according to the state of the art to exclude all errors in the software under all conditions of use. The subject of the warranty is therefore software that basically corresponds to the specifications made in the respective program documentation. Subject to any express assumption of warranty in the order confirmation by KONSULTEC GMBH, the information in the program documentation and other program descriptions shall not be deemed a guarantee of quality within the meaning of §§ 443 and 639 BGB.
An error exists if the software does not fulfill the functions specified in the program documentation, delivers incorrect results, aborts its run in an uncontrolled manner or otherwise does not behave in a functional manner, so that the use of the software is prevented or significantly impaired. Imperfections in the software which do not frustrate or significantly impede its intended use are not covered by the warranty obligation.
KONSULTEC GMBH provides no warranty for errors in the software,
– which are caused by application errors on the part of the customer and which could have been avoided by careful consultation of the program documentation; this also applies to non-existent or inadequate backup measures;
– due to virus attacks or other external influences for which KONSULTEC GMBH is not responsible, such as fire, accidents, power failure, etc.; – which are due to the fact that the software has been modified by the customer or third parties.
– which are based on errors in the hardware, the operating system or the software of other manufacturers;
– which are based on the fact that the software has been modified by the customer or third parties.
In the event of the occurrence of errors within the meaning of Section 12.2, the Customer is obliged to provide KONSULTEC GMBH with all information necessary for error analysis and rectification and to grant KONSULTEC GMBH or the persons authorized by it unrestricted access to the software and the Customer’s system on which it is installed. An error message must contain information about the type of error, the application in which the error occurred and the work carried out to rectify the error. The error must be described in such a way that it can be reproduced. If KONSULTEC GMBH carries out an error analysis at the customer’s request and it turns out that there is no error that KONSULTEC GMBH is obliged to rectify, KONSULTEC GMBH can invoice the customer for the corresponding expenditure on the basis of KONSULTEC GMBH’s applicable hourly rates.
The warranty only covers errors that were already present at the time of delivery or acceptance of the software. The warranty does not apply if the Customer makes changes to the software or has them made by third parties without the consent of KONSULTEC GMBH or does not use the software in accordance with the respective program description or uses it with a system (hardware and software) other than the one for which the software was configured.

13. defects of title
KONSULTEC GMBH warrants within the framework of the statutory provisions that the services provided by it are free of third-party rights that prevent their contractual use by the Customer.
In the event that third parties assert such rights, KONSULTEC GMBH shall use its best efforts to defend the Customer against the asserted third-party rights at its own expense. The Customer shall immediately inform KONSULTEC GMBH of the assertion of such
rights of third parties and shall grant KONSULTEC GMBH all powers of attorney and authorizations necessary to defend the Customer against the asserted rights of third parties. KONSULTEC GMBH must reimburse the customer for any necessary legal costs incurred.
If it is established that there are defects of title, KONSULTEC GMBH is entitled, at its discretion,
– to take appropriate measures to eliminate the rights of third parties that impair the contractual use of the service or their assertion or
– to modify or replace the service in such a way that it no longer infringes the rights of third parties, if and to the extent that this does not impair the guaranteed functionality of the service. The customer must adopt a new software version if the contractual scope of functions is retained and the adoption does not lead to inappropriate, adaptation and conversion problems for the customer.
If KONSULTEC GMBH does not succeed in remedying the defect of title in accordance with Section 13.3 above within a reasonable period of time to be set by the customer, the customer may, without prejudice to any claims for damages or reimbursement of expenses in accordance with Section 15, demand a reduction (reduction of the agreed remuneration) or – if the defect of title is not only insignificant – terminate the contract.
Clause 11.7 shall apply accordingly to the limitation period for claims due to defects of title.
The above provisions on subsequent performance also apply to separate services and consultations that KONSULTEC GMBH provides for the customer on the basis of separate contracts.

14. manufacturer’s warranties
If KONSULTEC GMBH is not the manufacturer of a delivery item and the manufacturer offers the customer a warranty that goes beyond supplementary performance, KONSULTEC GMBH shall inform the customer of this and provide the customer with the warranty documents at the customer’s request. KONSULTEC GMBH is not responsible for the fulfillment of the manufacturer’s guarantee.

15. liability
KONSULTEC GMBH is liable in the event of intent or gross negligence, under the Product Liability Act and in the event of non-fulfillment of assumed guarantees in accordance with the statutory provisions. This also applies to liability for damages resulting from injury to life, body or health, which are based on a negligent breach of duty by KONSULTEC GMBH or an intentional or negligent breach of duty by a legal representative or vicarious agent of KONSULTEC GMBH.
In the event of culpable breach of essential contractual obligations, liability is limited to the reasonably foreseeable damage typical for the contract. KONSULTEC GMBH shall also only be liable for the recovery of lost data in these cases if the customer has ensured that this data can be reconstructed from machine-readable data material with reasonable effort.
In addition, KONSULTEC GMBH shall be liable to the extent that it is insured against any damage incurred, within the scope of the insurance cover and subject to the condition precedent of the insurance payment.
If the customer is a merchant, liability for gross negligence shall be limited to reasonably foreseeable damage typical of the contract.
In all other respects, KONSULTEC GMBH accepts no liability, in particular for business interruption, loss of profit, loss of information or data.
Claims for damages and claims for reimbursement of futile expenses shall lapse within one year of delivery or acceptance.
The above provisions on subsequent performance also apply to separate services and consultations that KONSULTEC GMBH provides for the customer on the basis of separate contracts.

16. export licenses
The customer is obliged to comply with the applicable export regulations, in particular the Foreign Trade and Payments Act (AWG), the Foreign Trade and Payments Ordinance (AWV) and the relevant EC regulations for exports and shipments.
At the request of KONSULTEC GMBH, the customer must submit an end-use certificate that meets the requirements of the provisions mentioned in section 12.1.

17. collateral agreements, amendments and additions to the contract
Collateral agreements, amendments and additions to this contract must be made in writing. This written form requirement can only be waived by written agreement.

18. place of jurisdiction, choice of law, contract language
The place of jurisdiction for all disputes arising from this contract is the court responsible for the registered office of KONSULTEC GMBH, namely Düren.
The contractual relationships of the contracting parties are subject to the law of the Federal Republic of Germany. The application of the Vienna UNCITRAL Convention on Contracts for the International Sale of Goods of April 11, 1980 is excluded.
The contract language is German.

19. severability clause
If the contract concluded under these terms and conditions contains a loophole or if a provision is or becomes invalid in whole or in part, the remainder of the contract shall remain valid.
If the invalidity is not based on a violation of the General Terms and Conditions Act, a provision shall be deemed agreed in place of the missing or invalid provision which comes closest to the economic purpose of the missing or invalid provision originally intended by the contracting parties.
However, the contract shall be invalid in its entirety if adherence to it would constitute an unreasonable hardship for one of the contracting parties, even taking into account the amendment provided for in Section 18 (2).

20. general provisions
The place of performance is the registered office of KONSULTEC GMBH.
The Customer may only transfer its rights and obligations arising from the contract concluded under these terms and conditions with the written consent of KONSULTEC GMBH. The same applies to the assignment of his rights under this contract.
If the customer has his (residential) domicile outside the Federal Republic of Germany, but within the European Community, he is obliged to comply with the VAT regulations of the European Community. The customer is obliged to disclose his VAT identification number to KONSULTEC GMBH and to provide KONSULTEC GMBH with the necessary information regarding his entrepreneurial status, the use and transportation of the delivery items and the statistical reporting obligation.
The customer hereby agrees that KONSULTEC GMBH may store and process data disclosed within the scope of the contract and business relationship in accordance with the Data Protection Act, insofar as this is necessary for the execution of the contract, in particular for order processing and customer support, whereby the interests of the customer must be taken into account.