Legal matters
General Terms and Conditions of Purchase
As of: April 2011
General Terms and Conditions of Purchase Genius Bytes Software Solutions GmbH
§ 1 General
For all orders in business dealings with entrepreneurs, the General Conditions of Purchase of Genius Bytes Software Solutions GmbH (hereinafter referred to as „Genius Bytes“) shall apply exclusively, also for other contracts, e.g. contracts for work and labour or contracts for the supply of goods to be produced. Any terms and conditions of the supplier that deviate from these Conditions of Purchase shall not be recognised – even if Genius Bytes has not expressly objected to them – unless Genius Bytes has expressly agreed to their validity in writing upon conclusion of the contract. The acceptance of contract items does not constitute agreement to the supplier's general terms and conditions. The General Conditions of Purchase shall also apply to all future transactions and contracts with the supplier, unless otherwise agreed therein.
§ 2 Orders
Only orders placed in writing (including email or fax) shall be binding. This shall also apply to additions and amendments to the agreements made, including these purchasing conditions.
§ 3 Conclusion of contract
Orders are only binding on Genius Bytes if they are confirmed in writing by the supplier within 8 days of dispatch of the order, stating a binding delivery date, unless otherwise agreed in an individual case. Deviations in quantity and quality from the text and content of the order and subsequent contract amendments shall not be deemed agreed until Genius Bytes has expressly confirmed them in writing. Genius Bytes may also subsequently request changes to the delivery item within reason. When making such a contract amendment, the effects on both sides, in particular with regard to additional or reduced costs as well as delivery dates, must be taken into account appropriately.
§ 4 Prices, pricing, terms of payment
4.1 The prices stated in the orders are fixed prices.
4.2 Delivery shall be at the supplier's expense, free of all charges, to the receiving point specified by Genius Bytes. If Genius Bytes assumes the freight costs, the supplier shall select the mode of transport prescribed by Genius Bytes, otherwise the most favourable mode of transport and delivery for Genius Bytes.
4.3 Packaging is included in the price. If, by way of exception, anything else is agreed, the packaging shall be charged at cost price. The supplier shall choose the packaging specified by Genius Bytes and ensure that the goods are protected against damage by the packaging.
4.4 The risk shall only pass to Genius Bytes upon acceptance of the goods by the receiving centre.
4.5 Unless otherwise agreed in writing, payment of the purchase price shall be due 30 days after handover of the goods, receipt of a verifiable invoice and receipt of all documents required under the contract. If payment is made within 14 days of receipt of the verifiable invoice, but no earlier than the date of handover and transfer of ownership by the supplier, the supplier shall grant a discount of 2 %. In the case of partial deliveries, payment shall not become due until the final delivery has been made. This shall not apply to contracts for successive deliveries (= call-offs from framework orders). In the case of advance payments, Genius Bytes shall be entitled to require a bank guarantee.
Claims against Genius Bytes may only be assigned with the written consent of Genius Bytes, which shall not be unreasonably withheld. Such consent shall be deemed to have been granted pursuant to Section 10 in the event of an extended retention of title.
4.7 Genius Bytes shall be entitled to rights of set-off and retention to the statutory extent.
§ 5 Delivery date
5.1 The delivery date or delivery periods stated in the order are binding. Delivery periods run from the date of the order. If delivery takes place before the agreed delivery date, Genius Bytes reserves the right to refuse acceptance of the delivery and to return it at the supplier's expense.
5.2 The Supplier is obliged to notify Genius Bytes in writing without undue delay if circumstances arise or become apparent to them from which it follows that the agreed delivery period cannot be met.
5.3 If the agreed date or deadline is exceeded for reasons attributable to the Supplier, Genius Bytes shall be entitled to claim a contractual penalty of 0.25 % for each working day or part thereof of the delay, up to a maximum total of 5 % of the total net order value. Notwithstanding Section 341(3), it shall be sufficient for Genius Bytes to claim the contractual penalty with the final payment. Any further claims remain untouched.
§ 6 Release from the obligation to perform
Force majeure releases the contractual partners from their performance obligations for the duration of the disruption and to the extent of its effects. The contractual partners are obliged, within reason, to transmit the necessary information without delay and to adapt their obligations to the changed circumstances in good faith.
§ 7 Quality, acceptance, notice of defects
7.1 The Supplier is obliged to comply with the technical data required by Genius Bytes for its deliveries, the applicable accident prevention and VDE regulations, the applicable statutory provisions, as well as the latest recognised rules of technology. To ensure the quality of its deliveries, the Supplier shall carry out quality inspections suitable in nature and scope.
7.2 For dimensions, quantities and quality, the values determined by the incoming goods inspection department of Genius Bytes shall apply. decisive.
7.3 There are no duties or obligations to inspect and give notice of defects prior to complete delivery or performance. The supplier acknowledges that Genius Bytes duly carries out an incoming inspection by Genius Bytes conducting reasonable random checks regarding the identity of the delivered item, weight, dimensions and appearance immediately upon delivery to Genius Bytes, at the latest within 14 days. Genius Bytes is not obliged to carry out technical functional tests or other examinations. Genius Bytes must notify the supplier of any defects in the delivery which become apparent during the aforementioned examinations without undue delay, at the latest within 14 days of delivery or, in the case of hidden defects, from discovery.
§ 8 Warranty
The warranty claims of Genius Bytes are governed by statutory provisions and shall apply to Genius Bytes in full. Genius Bytes is entitled to remedy the defect itself at the supplier's expense if there is imminent danger or special urgency. The limitation period for warranty claims is 36 months, calculated from the transfer of risk. For parts repaired or restored within the warranty period, the limitation period begins to run anew from the time at which the subsequent performance was carried out. The supplier is obliged to reimburse the costs incurred as a result of a defective delivery or other defective performance, in particular transport, material and labour costs.
§ 9 Liability
9.1 The supplier shall be liable within the framework of statutory provisions. Limitation of liability on the part of the supplier shall be ineffective. If Genius Bytes is held liable for damages by customers or third parties under product liability, regardless of the domestic or foreign legal grounds, the supplier shall indemnify Genius Bytes against such claims – including the associated necessary costs of legal defence – insofar as it has caused the damage and – in the case of the application of fault-based law – is responsible for the facts giving rise to liability.
9.2 Within the scope of liability pursuant to Section 9.1, the supplier is also obliged to reimburse any expenses arising from the fact that the delivery item is not safe, in particular for a recall. Genius Bytes shall – as far as possible and reasonable – consult with the supplier regarding the content or scope of the measures to be taken.
9.3 The Supplier shall maintain product liability insurance with a minimum coverage of EUR 3 million per claim for personal injury and property damage on a lump-sum basis. The right of Genius Bytes to assert claims for damages exceeding the insured sum shall remain unaffected hereby.
The supplier shall provide evidence of this insurance at the request of Genius Bytes.
§ 10 Retention of title
10.1 The Supplier shall be entitled to the reservation of title requested by them, provided that this expires upon payment of the remuneration agreed for the delivered item (goods subject to retention of title) and Genius Bytes is authorised to resell them in the ordinary course of business.
10.2 To secure the claim in the event of further processing and resale in place of retention of title, Genius Bytes hereby assigns to the supplier, in the event that a retention of title pursuant to Section 10.1 has been validly agreed, the claim accruing to Genius Bytes against its customers from the resale of the newly manufactured item produced using the goods subject to retention of title, in the amount of the invoice value of the goods subject to retention of title delivered by the supplier in each case. If claims against customers of Genius Bytes are included in a running account, the assignment shall relate to the corresponding part of the balance, including the closing balance from the current account.
10.3 The Supplier hereby reassigns the claims assigned pursuant to Section 10.2 back to Genius Bytes, subject to the condition precedent that Genius Bytes pays the remuneration invoiced for the respective goods subject to retention of title. Genius Bytes accepts this assignment.
10.4 Genius Bytes is authorised to collect claims assigned to the supplier. Revocation of this authorisation shall only be effective if Genius Bytes breaches payment obligations arising from the transaction underlying the delivery of the respective goods subject to retention of title. Under this condition, the supplier may also demand that Genius Bytes discloses the assigned claims and the debtor to them, and notifies the debtor of the assignment, or makes the notification itself.
Section 11 Intellectual Property Rights
The supplier guarantees that no third-party rights are infringed in connection with its delivery. If Genius Bytes is held liable by a third party in this regard, the supplier is obliged to indemnify Genius Bytes against these claims upon first written request. Genius Bytes is entitled to enter into agreements with the third party – without the supplier's consent – at its own discretion, in particular to conclude a settlement. The supplier's obligation to indemnify relates to all expenses necessarily incurred by Genius Bytes from or in connection with being held liable by a third party. The limitation period for these claims is 10 years, commencing upon delivery of the economic good procured from the supplier.
§ 12 Secrecy
The supplier is obliged to treat the orders and all commercial and technical details associated therewith as a business secret. Sub-suppliers are to be bound accordingly. The obligation of confidentiality shall also apply after the execution or failure of the contract. It shall expire if and to the extent that the knowledge contained in the documents provided has become generally known.
Section 13 Place of performance, place of jurisdiction, applicable law
13.1 The place of performance for all contractual obligations shall be the registered office of Genius Bytes. The place of jurisdiction for all disputes shall be the court with subject-matter jurisdiction at the registered office of Genius Bytes. However, Genius Bytes shall also be entitled to sue the supplier at their general place of jurisdiction.
13.2 All legal relationships between the supplier and Genius Bytes shall be governed exclusively by the laws of the Federal Republic of Germany.
13.3 If the supplier is domiciled outside of Germany, the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall apply, subject to the following special provisions:
(a) Contract amendments or cancellations must be made in writing. This shall also apply to agreements on the
of this written form agreement.
(b) In the event of a culpable breach of contract, the supplier shall also be liable for damage that was unforeseeable at the time of conclusion of the contract.
(c) In the event of the delivery of goods not conforming to the contract, Genius Bytes may demand a replacement delivery from the supplier if the non-conformity constitutes a material breach of contract. A breach of contract is deemed to be material, inter alia, if the goods are manufactured or distributed exclusively by the supplier or if it is unreasonable for Genius Bytes for any other reason to procure the goods from a third party.
(d) Genius Bytes may declare the cancellation of the contract in the event of delivery of non-conforming goods if the breach of contract constitutes a fundamental breach of contract. A breach of contract is fundamental, inter alia, if the damage cannot be assessed later or at all, non-material damage has occurred, the claim for damages is excluded pursuant to Article 78 CISG, in the case of long-term contracts trust in the reliability of the supplier is permanently impaired, or if the lack of conformity of the goods reaches such an extent that the resale of the goods in the ordinary course of business is no longer possible.
§ 14 Final provisions
14.1 Collateral agreements must be in writing to be effective. This also applies to any amendment or cancellation of this written form clause.
14.2 Should any of the provisions be or become invalid or unenforceable, the remaining provisions shall remain unaffected hereby. In this event, the contracting parties shall be obliged to replace the invalid or unenforceable provision with a provision that comes as close as possible to the economic result of the invalid or unenforceable provision.
14.3 The English version of these conditions of purchase is provided for guidance only. The German version is the sole authoritative text and is exclusively binding for interpretation.