These Terms and Conditions form an integral part of all our offers and contracts for deliveries and services, includ-ing current or future business relations. Any deviating agreements, in particular any contradictory terms and condi-tions of our customers, are subject to our express written consent in order to become part of a contract.
A. GENERAL TERMS AND CONDITIONS
We provide all our services at the terms contained in Section A of the General Terms and Conditions. In the subse-quent Section B, special additional provisions on this are made in connection with the remote supervision portal.
1. Conclusion of a contract, object of delivery and service
1.1. All our offers are submitted without obligation.
1.2. Contracts and amendments of contracts with us become applicable only if we have accepted orders/purchase orders in writing or if we have agreed changes with our customers in writing or if the delivery objects or services ordered by our customers have been delivered or produced.
1.3. Our deliveries and services are completely described in our offer/order confirmation, including potential specifications. The information contained therein reflects standard industry approximate values, failing other express arrangements. We reserve the right to make changes to the above-mentioned documents to the extent that such change is not a material change and the change can be regarded as being acceptable for the Customer. Samples are considered to be type samples which shall exemplify the design of the delivery/service object.
1.4. Regulations which apply in the country of destination for the delivery/service rendered by us (e.g. acci-dent prevention regulations, technical standards etc.) shall be observed by us only as far as we have been been instructed by the customer to comply with them prior to the conclusion of a contract and we have agreed in writing to their validity.
2.1. Our prices are to be regarded as net ex works and do not include transport, packaging and other incidental costs (especially insurance, customs duties etc.), which we will charge separately to our customers.
2.2. We shall be entitled to demand the price for the delivery of objects/services, which, at the time of delivery/rendering the service, is equivalent to the price which is also invoiced to our other customers, when a period of more than 4 months has elapsed between the conclusion of a contract and the delivery/rendering the service.
3. Terms of payment
3.1. All payments shall be effected to our registered office, without any deduction for cash discount, expenses, taxes, levies, fees, customs duties, and the like.
3.2. We accept bills of exchange by prior written arrangement only and on condition that said bills are discountable. Both bill of exchange amounts and cheque amounts will only be entered to the customer's credit once we have recorded unconditional receipt of the proceeds. Arising costs are to be refunded to us.
3.3. We shall be entitled to interest of 5% p.a. from the date the invoice has become due, and of 8 percentage points above the base rate as valid from time to time from the date of default. We reserve the right to claim damages for the enforcement of a further delay.
4. Acceptance and taking over
4.1. On the due date immediately upon our request, the customer shall be obliged to accept/take over our deliveries or services at the (manufacturer’s) works/warehouse designated by us. If the deliveries/services are not accepted or only accepted with a delay, due to reasons, for which we are not responsible, this shall not affect the agreed due date for payment.
4.2. If a customer does not accept/take over our delivery/service in a timely manner (Paragraph 4.1), we shall be entitled, after an unsuccessful reminder of an appropriate deadline, to withdraw from the contract with that customer and to claim damages, that is, at our choice, either compensation for the loss incurred or - with-out evidence of any damage - 10 percent of the agreed-upon price. It shall be left to the customer, in par-ticular, to furnish proof of the fact that we have incurred no or only a minor loss.
5. Deadlines and delivery dates
5.1. Deadlines and delivery dates are only legally binding for us if these have been agreed in writing with our customer.
5.2. Agreed times for delivery or services to be rendered start with the date of our written acceptance declaration or confirmation of the order.
5.3. Acts of God and other extraordinary circumstances such as industrial action, machine breakdowns, bottlenecks in commodity supplies, sovereign measures and traffic disruptions - irrespective of whether such circumstances occurred at our company or at our suppliers - shall fully exempt us for the duration of their impact from our duty to deliver/provide services, where the delivery/service proves impossible.
5.4. Regardless of the above Paragraph 5.3, the time period for delivery/rendering service shall extend appro-priately if information of the customer that is required to render the service is missing or has not been provided, if the object of delivery/service is changed subsequently, or if other provisions by the customer are not or not in time made available by the customer.
6. Assumption or risk, dispatch, transport and insurance
6.1. The risk of accidental loss and accidental deterioration of the goods/services provided by us shall pass to the customer, beginning with the acceptance/take-over by the customer, at the latest, however, when the goods leave our factory or warehouse, respectively. This shall also apply for partial deliveries/services and also if we have taken over other services (such as transport, transfer etc.).
6.2. If acceptance or take-over or dispatch of the goods from our work or warehouse is delayed for reasons which the customer is responsible for, the risk shall pass, at the latest, to the customer after the goods have been sorted ready for dispatch or after notification of readiness for dispatch has been given.
6.3. Transport and shipment of deliveries and services shall take place at the customer’s risk and for the customer’s account. The customer shall be bound to take out insurance for potential risks which may result from the transport and dispatch of deliveries or services.
7.1. For defects of newly produced items, the following shall apply:
7.1.1. The Customer shall notify us of defects within eight calendar days after receipt of the goods and of hidden defects within eight calendar days after their detection.
7.1.2. The customer shall give us the opportunity to compensate for the defect within reasonable time at our choice, may be through elimination of the defect, delivery of goods/services that are free from defects or production of new work.
7.1.3. In the event subsequent performance should finally fail, should not be reasonable for us or the customer, or should be possible only with excessive cost/expenses, the customer shall be entitled to withdraw from the contract or reduce the remuneration - irrespective of any other damages.
7.1.4. Any claims of the customer against us for reimbursement of any expenses necessary for subsequent performance, in particular transport costs, travelling expenses, work and material costs shall be excluded insofar as expenses are rising because the subject-matter of the delivery was subsequently taken to a different place from the site of the customer; unless this transfer corresponds to the intended purpose of the object of delivery/service.
7.1.5. Should it be necessary to carry out works at a different place, the customer - prior to starting the works - shall inform us about that in time, provide us with the opportunity to look at the defects and observe our notes on limiting the costs.
7.1.6. Legal claims of the customer against our company under a right of recourse exist only in so far as the customer has not reached any agreements with his clients beyond the legal warranty claims and rights. See also Paragraph 7.1.4 for the extent of legal recourse instigated by the customers against us.
7.1.7. Where complaints of deficiency are raised, the customer may withhold payments only inasmuch as they are in reasonable proportion to the occurred deficiency.
7.1.8. The period of limitation for material and legal defects is one year, starting with the transfer of risk. This does not apply if and in so far as longer deadlines are stipulated in accordance with §§ 438, para. 1 No. 2, 479 para. 1, 634a para.1 No. 2, 651 BGB, the defect was maliciously concealed or if one of the cases of liability specified in paragraph 8.1 applies.
7.2. Our obligation to pay damages depends on Paragraph 8 stated below.
7.3. Subject to the provisions of item 8.1 below, we shall deliver used items to the exclusion of liability for defects in quality or title.
7.4. The above regulations are not linked with reversal of the burden of proof to the disadvantage of the cus-tomer.
8. Damage compensation and liability
8.1. Claims for damages and compensation of expenses (hereinafter jointly referred to as "damages") of the customer against our company are excluded, irrespective of the cause in law, unless they are based on the provisions of the Product Liability Act, on an intentional or grossly negligent violation of contractual or le-gal obligations on our part, on injuries to health and physical injuries to the customer due to a violation of duties for which we are responsible, a warranty promise for the existence of a characteristic feature or the violation of essential contractual obligations by our company.
8.2. Compensation for the breach of a material contractual duty shall be limited to contract-typical foreseeable loss if there is no intentional act or gross negligence, and there is no liability for health or bodily injury or because of the assumption of a warranty for the existence of a quality.
8.3. A breach of obligation by our legal representative or performing agents shall be considered the same as a breach of obligation on our part.
8.4. Paragraph 7.4 applies accordingly.
9. Property rights
9.1. All plans, drawings, calculations and other documents to which our customers have access remain our property, all copyright and other commercial protection rights reserved. The aforementioned documents and information must not be used for other purposes and particularly not reproduced or made accessible to a third party without our written consent. The aforementioned documents shall be returned to us upon demand.
10. Transfer of rights, set-off and retention
10.1. The customer is not entitled to transfer his claims directed against us to any third party without our written consent.
10.2. The customer shall be entitled to present us only with incontestable, legally validated or established (proven) claims or to exercise the right of retention or the right to refuse services on account of these claims.
10.3. The existing exclusion of the right to retention/right to refuse services shall not apply when we have already received part payment for services supplied not wholly in accordance with the contract, from our customer corresponding to the value of part of the provision stipulated in the contract, or if in relation to our initial suppliers, we have retained part of the payment corresponding to the value of the services pro-vided that were not in accordance with the contract.
11. Reservation of proprietary rights
11.1. We reserve ownership of the items supplied and/or installed by us ("reserved title goods") pending full payment of all amounts owed to us under the relevant contracts and from the business relationship with the customer, now and in the future, regardless of their legal basis against the customer and that arise on conclusion of contract, or had already arisen on that date.
11.2. The customer shall be entitled to resell, process, mix and incorporate and subsequently resell the reserved title goods within the scope of an extended reservation of ownership if this occurs within the scope of a proper business operation. A pawning or transfer of ownership as security on a debt of reserved title goods is not allowed to the customer. In the case of seizure or confiscation of the goods or other interven-tions by third parties the customer shall inform us in writing without delay.
11.3. Any possible processing or modification of the goods subject to reservation of proprietary rights by the customer are exclusively done for us. In cases where the customer combines or mixes reserved title goods with other goods not belonging to us, we shall acquire co-ownership in the new product in the proportion of the total value of this new product to the invoiced value of the reserved title goods. The new object cre-ated from integration shall also be regarded as a supplied product for the purposes of these terms and conditions.
11.4. As a security the customer will cede to our favour and in advance all claims he may have in connection with the sale including any ancillary rights or any claims against the insurer he may be entitled to. The customer assigns all claims to us which he is now, or in future, entitled in connection with the export against domestic and foreign banks, especially claims from collection orders, from letters of credit or confirmations of letters of credit as well as securities and guarantees. In case the goods subject to reservation of proprietary rights are sold, be it without or after processing together with other goods not belonging to us, the claims shall be transferred to us to the extent of the value of the invoice for the goods with reserved proprietary rights. The aforesaid cedes do not include any deferral of our claims against our customers.
11.5. The customer shall remain entitled to collect the assigned claims even after the assignment. Our authority to collect the receivables ourselves shall remain unaffected therefrom. However, we obligate ourselves not to undertake any self-collection of accrued claims in so far as our customer does not run into default of payment, no application for insolvency proceedings against the customer's assets has been filed or rejected for lack of sufficient assets, or discontinuance of payments is not given. In any of these cases, the customer shall inform us immediately about the ceded claims and the debtors including all information and documentation necessary to collect the claims ceded.
11.6. Our customer must keep the reserved title goods in an adequate condition, store them separately and label them immediately as when in our possession.
11.7. On request of the customer we will return the reservation of proprietary rights of the reserved title goods we are entitled to and the claims ceded to us in as far as the value of these exceeds the value of the claims we have against the customer by 20%.
12. Data protection
12.1. We shall be entitled to store the data of our customer in our computer system in the frame of the business relation and process and use these data in accordance with the legal regulations for our operation.
13. Fulfillment location, applied law, legal domicile and partial nullity
13.1. The place of performance for all deliveries, services an payments is Achim.
13.2. The sole court of jurisdiction for all disputes arising directly or indirectly from the terms of the contract between our customer and us from documents, bills of exchange and cheques is the local or regional court having competence our registered place of business. We shall also be entitled, if we so wish, to bring an action against the customer at the court having jurisdiction at the exhibitor's principal place of business.
13.3. The law of the Federal Republic of Germany shall apply, i.e. excluding the convention of the United Nations concerning contracts on the international purchase of goods.
13.4. Should individual provisions of a contract on supplies and/or services, of which these provisions are an integral part, be or become invalid, this shall not affect the validity of the remaining provisions of the contract.
B. SPECIAL TERMS AND CONDITIONS FOR THE DATA REMOTE SURVEILLANCE, CONTROL AND MAN-AGEMENT SYSTEMS (HEREINAFTER REFERRED TO AS “SERVICES”)
Apart from the General Terms and Conditions of Section A, the Special Terms and Conditions for the Service apply in addition for Services (for example e-control flex) concerning offers or business deals.
1. Service object and scope
1.1. Services are data and process management systems which, in connection with a modem, make it possible to visualize position and operating data of mobile air conditioning systems (heating, dehumidifying, cool-ing, etc.) via the internet. e-control flex is a service for heating systems. During the process, the position and operating data is captured by the HEYLO modem, transferred by it via GSM mobile radio or the GPS network to HEYLO or HEYLO’s service providers, stored and then prepared for customers to display and retrieve them via an online portal. Apart from that, the service provides the opportunity to control the air conditioning system via the GSM mobile phone network by means of SMS and to receive (alarm) messages per SMS or via an email address.
1.2. The concrete scope of service is determined by the portal tariff (Basic, Basic Plus, or Profi) selected by the customer, the scope of which is described in the relevant documentation, herewith being part of these General Terms and Conditions.
1.3. The HEYLO modem that is required for the use of the service, is neither a delivery object nor a service object of the portal contract.
1.4. The Service is dependent on the regional, timely and qualitative availability of the GSM mobile phone network, the signal supply by the GPS satellite system, the internet as well as Third Party service providers (“the technical infrastructure). With conclusion of the portal contract, we neither take any obligation in this respect nor do we guarantee or assure that this technical infrastructure will remain completely unrestricted during the term of the contract, functions continuously trouble-free as well as technically support our ser-vice permanently.
2. Limit of use, service hindrances
2.2. Interruptions and delays in Service on the basis of act of God or other circumstances, which make it impossible to render our service temporarily or permanently or significantly impede them, without any culpa-bility on our part, and which could not have been avoided with the attention of a diligent businessman, will interrupt our service obligation for the duration of their impact and to the extent of their effect. Events in the foregoing sense are, for instance, industrial action and lockout, technical failures of the technical infra-structure (cf. B.1.4), power supply failures, fire, natural disasters, act of violence by any Third Party, improper, particularly excessive user of our Service, as well as interventions by the authorities. In so far as we use third parties to render our own Services, our service obligation is subject to the fact that the Third Party obliged by contract performs properly and timely; if this is not the case, we will immediately inform the customer as well as refund the payments already made for the lack of service.
2.3. If events linked within the meaning of the previous subparagraph lead to permanent impossibility or permanent, significant impairment of the Service, then both parties shall be released from the obligation of performance of contract from the point in time when the event happens. If the Service becomes temporarily impossible, the customer shall be entitled to reduce the contractual payments appropriately in accordance with the duration of interruption and severity of the impairment.
2.4. If, due to the duration of the interruption of Service, one of the parties cannot be objectively expected to continue the agreement, each party to the contract shall be entitled to withdraw.
3. Obligations of the customer with regard to the functionality of the Service
3.1. It is the customer's sole responsibility to create and maintain the conditions for the functionality of the Service within his sphere of influence; this includes in particular,
3.1.1. to equip the air conditioning system professionally with the HEYLO modem;
3.1.2. to permanently supply power to the HEYLO modem and protect it during the contract term against manipulations and harmful effects of the environment (e.g. moisture, mechanical damages etc.);
3.1.3. to position the air conditioning system equipped with the HEYLO modem within the transmit and receive range of a GSM mobile phone or GPS network;
3.1.4. to exclude interferences (especially by shadowing, constructional measures, electromagnetic ra-diation etc.) of the mobile phone connection and the GPS signal at the location of the air conditioning system equipped with the HEYLO modem.
3.2. We shall not be responsible for damages or disadvantages of the customer on account of a malfunction or non-function of the Service which is due to non-compliance of the foregoing conditions to be created by the customer.
4. Usage requirements
4.1. To access the internet-based remote supervision portal (for example with e-control flex), the customer requires an internet access and a suitable internet browser. In order to be able to use particular functional features of the Service (e.g. alarm messages, remote control), the customer further needs a valid e-mail ad-dress and/or a mobile phone access along with a compatible mobile phone. The aforementioned technical requirements are not provided by us.
4.2. The access data required for our remote supervision portal (for example e-control flex) will be transmitted to the customer following the conclusion of the portal contract. By careful dealing with the access data, the customer shall ensure that unauthorised third parties do not get any information about this data. If the customer detects unauthorised, abusive access to our Service by using their access data, the customer has to inform us about that immediately.
5. SIM card
5.1. During the whole term of the portal contract, the HEYLO modem, which is required for the functionality and use of the Service, is equipped with a SIM card enabling communications in the GSM mobile phone net-work. Unless otherwise agreed upon, the SIM card shall remain our property.
5.2. The customer is forbidden to remove the SIM card or use it for purposes which are not associated with the service.
5.3. If the customer detects any misuse or loss of the SIM card, they are obliged to inform us immediately so that we can prevent further misuse or unauthorised usage by any appropriate means. We shall be entitled to invoice the customer with the expenses occurred. All communication costs which occur until the point in time of the report and which are not associated with the Service, shall be for the account of the customer.
6. Settlement, payment
6.1. Unless otherwise agreed, the monthly fee for the portal tariff will be charged for the duration of six month in advance. Incidentally, our account receivables (e.g. additional fees for the use of the SMS control func-tion) shall be due immediately following receipt of the invoice.
6.2. If the customer’s obligation to pay becomes due by receipt of an invoice, it will immediately constitute de-fault, if the invoice amount is not paid within 14 days of the receipt of the invoice.
6.3. If the customer defaults with his payment to an amount equal to monthly portal tariff fees of two months, we shall be entitled:
6.3.1. to block temporarily the customer’s access to the remote supervision portal (for example e-control flex);
6.3.2. to terminate the contract without giving due notice.
7. Liability, guarantee
7.1. We do not assume any liability for damages that can be put down to any technical failure or to a malfunction of the technical infrastructure (Para B.1.4) that is caused beyond our control.
7.2. Further, it is neither guaranteed nor assured that:
7.2.1. the GSM mobile phone network and the GPS satellite system will support the Service without restrictions during the term of the portal contract;
7.2.2. the position and operating data captured in the air conditioning system will be handed over to the GSM mobile phone network within a specified period of time;
7.2.3. the position and operation data handed over to the GSM mobile phone network are delivered to us within a specified period of time;
7.2.4. the data transferred via the GSM mobile phone network will be transmitted without any error;
7.2.5. the (alarm) messages sent via the GSM mobile phone network will be delivered to the terminal unit or to the customer’s e-mail address within a specified period of time;
7.2.6. the GPS satellite positioning as well as the GSM localisation will lead to exact positioning;
7.2.7. the data obtained via the remote supervision portal (for example e-control flex) are displayed within a particular speed.
We cannot influence the aforementioned circumstances. We do not assume any liability for damages that can be put down to one or several aforementioned circumstances.
7.3. The regulations on liability contained in Section A, Paragaph 8, shall remain unaffected.
8. Contract term and termination of the portal contract
8.1. The portal contract is concluded and fixed for a period of 24 months.
8.2. The contract shall be automatically renewed for an additional period of one year, unless terminated in writing by either party upon three months' notice with effect as of the end of the contract year.
8.3. The right to terminate the contract for other good cause shall remain unaffected for both parties.
8.4. Terminations must be in written form.