General Terms and Conditions
the Metacarp GmbH
1. Validity of the terms and conditions
These general terms and conditions apply to all contracts concluded between Metacarp GmbH and the buyer as well as to any other agreements made within the framework of the business relationship. General terms and conditions of the customer are expressly not part of the contract, even if they are not explicitly contradicted by Metacarp GmbH. In the event that the customer does not want to accept the following general terms and conditions, he must notify Metacarp GmbH in writing in advance.
2. Terms of payment and prices
All invoices of Metacarp GmbH are payable within 10 days from the invoice date. Decisive is the date of receipt of the payment by Metacarp GmbH. In case of default Metacarp GmbH is entitled to withhold further deliveries and services. In case of late payment by the customer, Metacarp GmbH is entitled to charge interest in the amount of 1,5% above the respective discount rate of the Deutsche Bundesbank.
All prices are exclusive of the statutory value added tax.
Metacarp GmbH is entitled to make partial deliveries.
3. delivery and shipping
All offers are non-binding. Delivery occurs only as long as the stock lasts.
All delivery dates quoted by Metacarp GmbH are non-binding delivery dates, unless a delivery date has been expressly agreed in writing. If the buyer demands changes or additions to the order after the order has been placed, or if other circumstances occur which prevent Metacarp GmbH from adhering to the delivery date, even though Metacarp GmbH is not responsible for these circumstances, the delivery date will be postponed for a reasonable period. Will Metacarp GmbH on the timely performance of the contract, eg. If, for example, this is prevented by procurement, fabrication or delivery disruptions by the supplier or its suppliers, the general legal principles apply with the proviso that the customer can set a grace period of 6 weeks after the expiry of one month. If the failure to comply with a binding delivery date is demonstrably due to mobilization, war, riot, strike or lockout or other circumstances not attributable to Metacarp GmbH in accordance with general legal principles, the delivery period shall be reasonably extended. The customer can withdraw from the contract if he sets Metacarp GmbH a reasonable period of grace after expiry of the extended deadline. The resignation must be made in writing if Metacarp GmbH does not fulfill within the period of grace. If METACARP GMBH becomes completely or partially impossible to fulfill the contract due to the aforementioned reasons, it will be released from its delivery obligation.
The costs of shipping and transport insurance are always borne by the customer, whereby the choice of the shipping route and the shipping method at the discretion of Metacarp GmbH. The customer is obliged to inspect the goods immediately upon arrival and to notify Metacarp GmbH in writing of any visible damage in transit and any damage to the packaging. Same applies to hidden damages. If Metacarp GmbH loses its claims against the insurance company or the subcontractor due to the failure to fulfill this obligation, the customer shall be liable for all costs resulting from this breach of duty. The risk is transferred to the customer as soon as the goods leave the factory or warehouse of Metacarp GmbH.
4. Retention of Title
The delivered goods remain the property of Metacarp GmbH until full payment of all claims of Metacarp GmbH from the business relationship with the customer in the main and secondary matter. The customer is obliged to properly insure the goods subject to retention of title of Metacarp GmbH (ie theft, fire, water and low-current insurance) and to prove to Metacarp GmbH such insurance upon request. In case of damage, the insurance claim of the customer is deemed assigned to Metacarp GmbH. The customer is not authorized to dispose of the items subject to retention of title. In the event of seizure or seizure, the customer must inform Metacarp GmbH immediately in writing and must inform third parties of the retention of title of Metacarp GmbH without delay in a suitable form. In the event that the customer nevertheless sells the delivery items and Metacarp GmbH should approve this, the customer assigns the Metacarp GmbH with the conclusion of the contract all claims against its customers. The customer is obliged to provide Metacarp GmbH with all information required to assert these rights and to provide the necessary cooperation.
5. Limitation of Liability
Insofar as there is no direct personal injury or property damage, Metacarp GmbH shall only be liable up to a maximum amount of EUR 5.000,00. Metacarp GmbH is not liable for lost profits, missed savings or indirect and / or consequential damages. These limitations of liability do not apply to damages based on intent, gross negligence or lack of warranted characteristics. Metacarp GmbH is not liable for the recovery of data, unless it must be the destruction of the data as grossly negligent or intentionally attributed and that the customer has ensured by appropriate, the state of the art security measures that this data with reasonable effort can be reconstructed.
Metacarp GmbH warrants that the goods which have properties guaranteed by the contract and are free of defects shall cancel or reduce the value or suitability for normal or contracted use. An insignificant reduction of the value or the suitability remains out of consideration. The warranty period is 6 months and starts on the day of delivery. During the warranty period occurring defects the customer must report Metacarp GmbH immediately in writing.
The warranty does not cover the elimination of errors caused by normal wear, external influences or operating errors. The warranty does not apply if the customer changes without the consent of Metacarp GmbH devices, elements or additional equipment or can be changed by third parties, unless the customer provides full evidence that the defects in question neither in whole nor in part by such Changes have been made and that the rectification of the defect is not complicated by the change.
Metacarp GmbH may repair or replace faulty equipment, elements, ancillary equipment or parts as part of its warranty obligation. To the extent necessary for this, the customer will remove programs (including its application programs, data, data media, modifications and attachments) before replacement. The customer is obliged to give Metacarp GmbH the necessary time and opportunity to carry out the repair work. If Metacarp GmbH fails to remedy significant defects within 6 months from receipt of a proper notification of defects, the customer can set the seller a reasonable period of grace with the statement that he refuses to remedy the defect by the expiry of this period. After expiry of the deadline, the customer is entitled to change or reduction if the defect has not been remedied in time.
Metacarp GmbH warrants for a period of 6 months from the date of delivery that software supplied by Metacarp GmbH is substantially free from defects in material and workmanship and operates substantially in accordance with the accompanying product manual. The warranty is limited to these services. It is known to the customer that in the prior art errors in programs can not be excluded.
In the case of a legitimate complaint, Metacarp GmbH reserves the right to carry out a total of three reworkings or, in the case of final failure of the rework, to grant the customer the right of reversion or reduction. The customer has a right to change or reduction only if a program error for the entire performance picture should prove to be substantial and essential and the error can not be solved by other possibilities of the software.
Any other warranty, including but not limited to, the Software's suitability for Customer's purposes, direct or indirect damages (such as loss of profits, business interruption), loss of data or damage associated with recovering lost data are expressly excluded, unless Metacarp GmbH or its employees can be proved intent or gross negligence. Metacarp GmbH reserves the right to make changes to the programs after delivery, which improve the performance of the program and do not affect the rest of the software.
Metacarp GmbH and the customer mutually agree to keep all business and trade secrets of the other side for an indefinite period of time and not to pass them on to third parties or to exploit them in any way. The documents, drawings and other information received by the other contracting party based on the business relationship may only be used by the other contracting party within the framework of the respective contract purpose.
The customer ensures that the existing data processing systems and databases comply with the respective Federal Data Protection Act, State Data Protection Act and the respectively applicable data protection special regulations. This applies in particular with regard to the collection, processing, modification, transfer and deletion of data and databases. Metacarp GmbH ensures that it does not carry out any actions in the fulfillment of this contract that violate existing data protection regulations. In individual cases, Metacarp GmbH agrees with the person responsible for data security (data protection officer) to be named by the customer. Metacarp GmbH ensures that all persons commissioned by it have made a declaration of obligation within the framework of §5 BDSG and have been obliged to secrecy. The parties mutually agree to treat as confidential all information received in connection with this contract and to keep it secret for an indefinite period.
Should individual provisions of these terms and conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. Rather, what comes next to the intended purpose comes into the place of the invalid provisions.
Side agreements are not made. Contractual supplements will only be effective if confirmed in writing.
The customer may assign his rights from a business relationship with Metacarp GmbH only with the written consent of Metacarp GmbH. An offsetting against the purchase price claim is the customer only with recognized or legally established counterclaims possible.
Jurisdiction is the seat of Metacarp GmbH, Wiesbaden
12. validity law
German law applies.