General Terms of Sale

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CPS > General Terms of Sale

CALLIDUS precision systems GmbH / valid from 2003-01-01

1.	Scope
1.1	Any delivery, service and offer effected by us shall exclusively be executed on the basis of the present terms of sale. They shall also apply for any future business, even if not expressly stipulated again. We herewith oppose any counter-confirmation made by the purchaser referring to his own terms of business and sale.
1.2	Any provision made between us and the purchaser in order to execute a contract shall be stipulated in a contract in writing.

2.	Offer and Conclusion of Contract
2.1	Our offers are not binding, provided the binding force of the offer has not been expressly stipulated in writing. A contract shall not be concluded until we have confirmed our acceptance of the order in writing.
2.2	Drawings, illustrations, weights and measures as well as other performance data shall only be binding if expressly stipulated in writing.
2.3	We reserve the property and copyrights of documents, illustrations, drawings, calculations and other material in connection with an offer. They may not be made available to third parties. This stipulation is especially applicable for documents that are expressly marked as “confidential”. Their passing on to third parties shall be subject to our written approval.

3.	Prices, Terms of Payment, Offset, Retention
3.1	Our prices are quoted ex works unless otherwise agreed.
3.2	Unless otherwise specified, we consider ourselves bound by the prices of our offers for four weeks beginning at the date of the offer.
3.3	Our quoted prices do not include the legally applying V.A.T. On our invoices we shall separately state the rate and amount of V.A.T. legally applying on the invoice date.
3.4	Unless otherwise agreed, our invoices are payable strictly net within 30 days from the invoice date. The date when we take receipt of the invoice amount shall be considered the date of payment.
3.4.1	For the purchase of software solutions, the following special conditions shall apply: Invoices are payable strictly net within 10 days after the invoice date. The software shall first be activated with a time limit. The unlimited activation shall be effected immediately on receipt of the entire payment. Despite differing statements from the purchaser, we shall be entitled to offset payments to previous debts. The purchaser will be notified of such offsets. If cost and interest have already incurred, we shall be entitled to offset payments first against the cost, then against the interest and finally against the main service.
3.5	The deduction of cash discount is subject to a separate written agreement.
3.6	If the purchaser defaults in payment, we shall be entitled to claim global damages in form of an interest rate exceeding the respective discount rate of the German Federal Bank by 8 % (§247 BGB). The assertion of any claim for damages going beyond this shall remain unaffected hereof.
3.7	If we are informed of circumstances putting the creditworthiness of the purchaser into question, notably if a cheque and/or a bill of exchange is not cleared or payments are discontinued, we shall be entitled to claim maturity of the total balance of debt even if we have accepted payment by cheque. In this case we are also entitled to demand advance payment or provision of security.
3.8	The purchaser shall be entitled to offset only if his counterclaims have become res judicata, are undisputable or have been recognized by us. Furthermore, he shall be entitled to execute the right of retention only if his counterclaims are based on the same contractual relationship, have become res judicata, are undisputable or have been recognized by us.

4.	Delivery Period, Partial Deliveries, Delay of Acceptance
4.1	Delivery periods and dates shall not be binding unless they have been confirmed in writing. The beginning of the delivery period stated by us is subject to the clarification of all technical questions.
4.2	We are entitled to perform partial deliveries and partial services at any time.
4.3	Precondition for the adherence to our delivery and service commitments shall be that the purchaser fulfils his obligations properly and in time.
4.4	If the purchaser enters into delay of acceptance of delivery or fails to fulfill any other obligation, we shall be entitled to claim compensation for damages, including eventual surplus costs. The risk of accidental loss or accidental deterioration of the goods passes to the purchaser on the point of time where he enters into delay of acceptance.

5.	Passing of Risk
	The risk shall pass to the purchaser as soon as the goods consigned have been handed over to the party performing the transport or as soon as they have left our stock for dispatch (date of delivery). If delivery becomes impossible for reasons beyond our control, the risk shall pass to the purchaser on his notification of the readiness for dispatch.

6.	Warranty
6.1	The purchaser shall give written notice to us about any defect immediately, but within one week on receipt of the delivery or service at the latest. If defects cannot be discovered even through careful examination within this period, we shall be informed in writing about such defects immediately after detection.
6.2	If the good bears a defect the fault for which is on our part, the purchaser is entitled to demand the rectification of the defect according to § 439 BGB. When repairing a defect, we are obligated to bear all costs incurred by the action of remedy, especially transport, travelling, labour and material, unless the purchased good has been brought to a location different from the place of fulfillment.
6.3	If after an adequate period of time the rectification of defects fails and/or a replacement is impossible or unreasonable, the purchaser can decide to abate the compensation or withdraw from the contract. A claim for damages shall only apply under the conditions stated under point 7 of these General Terms of Sale.
6.4	The purchaser shall not be entitled to damages or rectification in case of insignificant defects.
6.5	The warranty for software includes the following additional items: We warrant the conformity of the software passed on to the purchaser with our program specifications, provided the software has been installed on systems designated by us according to our guidelines. Claims are only applicable in case of software defaults that can be reproduced at any time. However, we reserve the right to decide on the removal of defects according to the significance of the defect by installing an improved software version or by giving information about the removal of the defect or the method to bypass its effects. We will not warrant the correct operation of the software in any combination selected by the purchaser but not specified by us.
6.6	If our operating or maintenance instructions are not observed, if modifications to the deliveries or services have been effected, if parts are replaced, or if expendable items not meeting the original specification are used, any warranty shall be cancelled.
6.7	Warranty claims against us can only be raised by the direct purchaser and cannot be ceded to third parties without our written approval.
6.8	Our warranty shall only be valid for 12 months after delivery.
6.9	The foregoing provisions finally include the warranty of delivery or service and exclude any other warranty claim. Legal stipulations concerning the purchase of expendable items shall not be affected hereby.

7.	Restriction of Liability
7.1	Any claims for damages or reimbursement of expenses against us or any party charged by us are excluded unless any intentional or grossly negligent action has been conducted or essential contractual obligations have been infringed.
7.2	This restriction of liability shall not apply if the liability results from fraudulent intent and/or an assumed warranty. In case of an injury of life, body or health for our fault, we shall also be held liable for simple negligence.
7.3	Our liability according to the law on product liability shall in no case be affected.
7.4	Liability for loss of data will be limited to the typical restoration expenditure which would have arisen if the purchaser had secured his data regularly and correctly.
7.5	In case of a culpable substantial breach of duty on our part, our liability shall be restricted to the damage foreseeable at the time when the contract was concluded.
7.6	Any further claims of the purchaser for whatever legal reasons going beyond figure 7.1 to 7.5 are excluded. We shall therefore not be held liable for defects that have not occurred on the purchased product itself. Especially we shall not be held liable for loss of business and other financial loss of the purchaser.

8.	Retention of Title
8.1	Until the satisfaction of all claims (including any current accounts receivable) that are or will be due to us against the purchaser for any legal reason, the following securities that we will decide to release on request either entirely or in part as their value exceeds the claims by more than 20 % will be provided.
8.2	We retain title to the delivered goods (goods in retention of title). Any processing or modification shall be performed for the benefit of us being the manufacturer, but without any obligation to be imposed on us. The co-ownership of the new thing in relation to the value of the goods in reservation of title (invoice value) in proportion to the new product shall be due to us. In this case the purchaser shall store the goods for us without any remuneration. If the purchaser resells the new thing, figure 8.3 shall apply accordingly.
8.3	The purchaser shall be entitled to process and resell the goods in reservation of title in the ordinary course of business unless he is in default. Pledging or chattel mortgages shall be inadmissible. The purchaser shall be obliged to insure the goods in retention of title against the common risks. The purchaser assigns to us the claims arising from the resale or any other legal reason (insurance, tortuous act) with regard to the goods in retention of title (including any current accounts receivable) by way of security to the full extent. We authorize the purchaser revocably to collect in his own name the claims assigned to us for our account. The direct debit authorization may only be revoked if the purchaser does not meet his financial obligations properly.
8.4	If third parties have access to the goods in retention of title, notably by levy of attachment, the purchaser will refer to our title to the goods and inform us immediately so that we can assert our titles. Unless the third party is capable of reimbursing the judicial and extra-judicial costs resulting in this context, the purchaser shall be liable for it.

9.	Industrial Property Rights and Copyrights
9.1	In case claims for infringement of an industrial property right or a copyright are entered against the purchaser within one year after purchase of the goods since he uses our product/service, we will bind ourselves to get the right to further use for it. The prerequisite for this shall be that the purchaser immediately briefs us in writing on those claims entered by third parties and that we can reserve the right to any defensive and extra-judicial measure. Should under these conditions any further use of our product/service not be possible under economically justifiable conditions, it shall be considered as agreed that we either modify or replace the product/service to remedy the defect of title at our choice or take back the product/service and refund the purchase price we received deducting a sum in consideration of the age of the product/service.
9.2	Any claims against us shall be excluded if infringements of industrial property rights or copyrights caused by using our product/service in a different manner than offered by us or together with a product/service from other suppliers. Generally, the stipulations under figure 7 shall apply.
9.3	We shall not be held liable for infringements of a right in respect of any delivery/service performed on the basis of engineering documents or other data given by the purchaser.

10.	Software Rights
10.1	The purchaser will receive a non-exclusive and non-transferable licence for internal use of the delivered software, as well as changes to that software, and the relevant documentation which form part of our consignment or will be delivered at a later date.
10.2	Any further right to utilize programs and documentations other than those named under figure 10.1 shall not be due to the purchaser. In particular will we remain sole copyright holder. The purchaser shall not be allowed to disclose to any third party, photocopy or otherwise reproduce any program, documentation and any supplement delivered subsequently without our prior written consent, unless this is for the purposes of preparing a back-up copy, which must be identified as such.
10.3	The inverse translation of the ceded program code into other code forms (decompilation) is permitted under § 69 of copyright law for the purposes of creating interoperability with an independently produced software product. The interface information required to create interoperability can be ordered from us for the payment of a small fee.
10.4	Simultaneous storage, archiving or use of the software on more than one set of hardware is not permitted. Should the purchaser wish to employ the software on several hardware configurations simultaneously, with several staff, he must purchase the corresponding number of software packages.
10.5	The purchaser is bound to take suitable precautions to prevent unauthorised access of third parties to the software and all documentation. The original data carriers delivered as well as back-up copies are to be stored where they cannot be accessed by unauthorised third parties. The purchaser releases us from any damages arising from the violation of this duty. The purchaser must emphatically inform his staff of the applicable contractual conditions as well as the stipulations concerning copyright.

11.	Confidentiality
	Unless otherwise expressly stipulated in writing, the information submitted to us with regard to any order shall not be considered confidential.

12.	Applicable Law, Court of Jurisdiction
12.1	The Law of the Federal Republic of Germany shall apply for the business relations hereinbefore and the entire legal relationship between us and the purchaser under exclusion of the UN-Convention on Contracts for the International Sale of Goods.
12.2	If the purchaser is a merchant as defined by the Commercial Code or a legal person under public law or Federal Special Fund, the seat of our company shall be exclusive court of jurisdiction as to any dispute arising out of the contract directly or indirectly, unless another court of jurisdiction is mandatory.