Status April 2011
§ 1 General
The General Terms and Conditions of Purchase shall apply exclusively to all orders in dealings with entrepreneurs
of Genius Bytes Software Solutions GmbH (hereinafter referred to as „Genius Bytes“), also for other contracts, e.g. contracts for work and labour or contracts for work and materials. Any terms and conditions of the supplier that deviate from these Terms and Conditions of Purchase shall
shall not be recognised - even if Genius Bytes has not expressly objected to them - unless their validity
shall be agreed in writing by Genius Bytes upon conclusion of the contract. The acceptance of contractual items
does not imply agreement with the supplier's General Terms and Conditions. The General
The Terms and Conditions of Purchase shall also apply to all future transactions and contracts with the Supplier, unless otherwise specified therein.
otherwise agreed.
§ 2 Orders
Only orders placed in writing (including e-mail or fax) are binding. This also applies to
Supplements and amendments to the agreements made, including these Terms and Conditions of Purchase.
§ 3 Conclusion of contract
Orders shall only bind Genius Bytes if they are placed within 8 weeks of the order date, stating a binding delivery date.
days from dispatch of the order by the supplier in writing, unless otherwise agreed in individual cases.
otherwise agreed. Deviations in quantity and quality compared to the text and content of the order
and subsequent amendments to the contract shall only be deemed to have been agreed if Genius Bytes expressly confirms them in writing.
has. Genius Bytes may also subsequently make changes to the delivery item within reasonable limits.
request. In the event of this amendment to the contract, the effects on both parties, in particular with regard to additional or reduced costs and delivery dates, shall 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 made free of charge at the supplier's expense to the address specified by Genius Bytes.
Receiving centre. If Genius Bytes accepts the freight, the supplier shall pay the freight charges 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, something else has been agreed, the packaging shall be
at cost price. The supplier shall choose the packaging specified by Genius Bytes
and ensure that the packaging protects the goods from damage.
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 delivery of the goods.
goods, receipt of a verifiable invoice and receipt of all contractually required documents. Upon payment
within 14 days of receipt of the verifiable invoice, but at the earliest calculated from the date of handover and
If the supplier procures ownership, the supplier shall grant a discount of 2 %. In case of
In the case of partial deliveries, payment is only due with the last delivery. This does not apply to
successive delivery contracts (= call-offs from blanket orders). In the case of advance payments, Genius Bytes
authorised to demand a bank guarantee.
4.6 Claims against Genius Bytes may only be asserted with the written consent of Genius Bytes - which shall not be
may be unreasonably withheld. According to § 10, such consent is valid for an extended
Retention of title shall be deemed to have been granted.
4.7 Genius Bytes shall be entitled to rights of set-off and retention to the extent permitted by law.
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§ 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 the delivery is made before the agreed delivery date, Genius Bytes reserves the right to
reserves the right not to accept the delivery and to return it at the supplier's expense.
5.2 The supplier shall be obliged to inform Genius Bytes immediately in writing if circumstances
occur or become recognisable to him which indicate that the agreed delivery deadline cannot be met.
can.
5.3 If the agreed date or deadline is exceeded for reasons for which the Supplier is responsible, Genius
Bytes shall be entitled to charge a contractual penalty of 0.25 % for each commenced working day of delay, totalling
a maximum of 5 % of the total net order value. Notwithstanding § 341 para. 3, it is sufficient if
Genius Bytes shall assert the contractual penalty with the last payment. Any further claims shall remain unaffected.
untouched.
§ 6 Exemption from the obligation to perform
Force majeure shall release the contracting parties from their obligations for the duration of the disruption and to the extent of its effect.
Performance obligations. The contractual partners are obliged, within the scope of what is reasonable, to immediately
information required and to adjust its obligations to the changed circumstances in good faith.
faith.
§ 7 Quality, acceptance, notice of defects
7.1 The Supplier shall be obliged to provide the technical data required by Genius Bytes for its deliveries, the
applicable accident prevention and VDE regulations, the applicable statutory provisions and the
to comply with the latest recognised rules of technology. The supplier shall ensure the quality of its
deliveries to carry out a quality inspection suitable in type 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 Obligations to inspect and give notice of defects or obligations to give notice of defects do not exist before complete delivery or
Performance. The supplier recognises that Genius Bytes carries out an incoming goods inspection properly,
by Genius Bytes taking reasonable samples with regard to the identity of the delivered item, weight,
dimensions and appearance immediately after delivery to Genius Bytes, at the latest within 14 days,
carries out. Genius Bytes is not obliged to carry out technical function tests and other inspections.
Genius Bytes shall immediately report any defects in the delivery that become apparent during the aforementioned inspections,
at the latest within 14 days from delivery or, in the case of hidden defects, from discovery.
§ 8 Warranty
Genius Bytes' claims for defects shall be governed by the statutory provisions and Genius Bytes shall be entitled to assert such claims.
in full. Genius Bytes shall be entitled to remedy the defect itself at the supplier's expense,
if there is imminent danger or particular urgency. The limitation period for
The warranty period is 36 months, calculated from the transfer of risk. For goods delivered within the
The limitation period for parts that have been repaired or overhauled under the warranty begins anew from the
time from which the subsequent fulfilment was carried out. The supplier is obliged to pay the costs incurred as a result of defective
delivery or other poor performance, in particular transport, material and labour costs.
to replace labour costs.
§ 9 Liability
9.1 The Supplier shall be liable within the scope of the statutory provisions. Limitations of liability of the supplier are
ineffective. If Genius Bytes is held liable by customers or third parties for damages arising from product liability, irrespective of
domestic or foreign legal grounds, the supplier shall indemnify Genius Bytes
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from such claims - including the associated necessary costs of legal defence,
to the extent that he has caused the damage and - in the case of application of fault-based law - the
is responsible for the facts giving rise to liability.
9.2 Within the scope of liability pursuant to § 9.1, the Supplier shall also be obliged to reimburse any expenses which
The customer is responsible for any damage resulting from the fact that the delivery item is not safe, in particular for a recall. About content or
scope of the measures to be taken, Genius Bytes will - to the extent possible and reasonable - consult with the
Coordinate with suppliers.
9.3 The supplier shall take out product liability insurance of at least EUR 3 million per year.
personal injury/property damage as a lump sum. The possibility of Genius Bytes, via the
The right to assert claims for damages in excess of the insurance cover remains unaffected by this.
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 retention of title requested by him if this is agreed with the payment of the
delivered item (goods subject to retention of title) and Genius Bytes is authorised to resell them.
is authorised in the ordinary course of business.
10.2 As security in the event of further processing and resale instead of the reservation of title
Genius Bytes hereby agrees, in the event that a reservation of title pursuant to § 10.1 has been effectively agreed, that the goods delivered by
Genius Bytes from a resale of the newly manufactured goods produced using the goods subject to retention of title.
Genius Bytes in the amount of the invoice value of the goods delivered by Genius Bytes.
Supplier to the goods subject to retention of title. If the claims against customers of
Genius Bytes in a current account, the assignment relates to the corresponding part of the balance
including the closing balance from the current account.
10.3 The Supplier hereby assigns the claims assigned in accordance with § 10.2 back to Genius Bytes, and
subject to the condition precedent that Genius Bytes pays the costs invoiced for the respective reserved goods.
remuneration provided. Genius Bytes accepts this assignment.
10.4 Genius Bytes shall be authorised to collect claims assigned to the Supplier. A revocation
of the authorisation is only effective if Genius Bytes has payment obligations arising from the delivery of the
the transaction underlying the respective reserved goods. Under this condition, the supplier may
also demand that Genius Bytes informs him of the assigned claims and the debtor and that the
The debtor must notify the assignment or make the notification himself.
§ 11 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 respect, the supplier is obliged to inform Genius
Bytes from these claims upon first written request. Genius Bytes shall be entitled to
to make agreements with the third party - without the consent of the supplier - at its own discretion, in particular a
to conclude a settlement. The Supplier's obligation to indemnify shall apply to all expenses incurred by Genius
Bytes necessarily arise from or in connection with the utilisation by a third party. The
The limitation period for these claims is 10 years, beginning with the delivery of the goods supplied by the supplier.
of the asset purchased.
§ 12 Secrecy
The supplier is obliged to fulfil the orders and all commercial and legal obligations in connection therewith.
technical details as a trade secret. Sub-suppliers must be obligated accordingly.
The confidentiality obligation shall also apply after the fulfilment or failure of the contract. It expires if and when
to the extent that the knowledge contained in the documents provided has become generally known.
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§ 13 Place of fulfilment, place of jurisdiction, applicable law
13.1 The place of fulfilment for all contractual obligations is the registered office of Genius Bytes. Place of jurisdiction for all
Disputes shall be settled by the competent court at the registered office of Genius Bytes. However, Genius Bytes is also authorised to,
to sue the supplier at its general place of jurisdiction.
13.2 All legal relationships between the supplier and Genius Bytes shall be governed exclusively by the law of the
Federal Republic of Germany.
13.3 If the supplier is domiciled outside Germany, the United Nations Convention on Contracts for the International Sale of Goods shall apply.
Contracts for the International Sale of Goods (CISG) with 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 the amount
unforeseeable damage.
(c) Genius Bytes may demand a replacement delivery from the Supplier in the event of delivery of goods that are not in conformity with the contract,
if the breach of contract constitutes a material breach of contract. Material is a
Breach of contract, inter alia, if the goods are only manufactured or distributed by the supplier
or it is unreasonable for Genius Bytes to acquire the goods from a third party for any other reason.
(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 material breach of contract. A material breach of contract is
among other things, if the damage can be estimated later or not at all, immaterial damage
occurred, the claim for damages is excluded due to Article 78 V CISG, in the case of
the trust in the reliability of the supplier is permanently impaired or
if the non-conformity of the goods reaches such an extent that a sale of the goods in the ordinary course of
business transactions is no longer possible.
§ 14 Final provisions
14.1 Subsidiary agreements must be made in writing to be valid. This shall also apply to any amendment or
Cancellation of this written form clause.
14.2 Should one of the provisions be or become invalid or unenforceable, the remaining provisions shall remain in force.
provisions shall remain unaffected by this. In this case, the contracting parties are obliged to replace the invalid or unenforceable
the invalid provision with a provision that corresponds to the economic result of the invalid provision.
or impracticable provision as closely as possible.
14.3 The English version of these Terms and Conditions of Purchase is provided for guidance only. The
The German version is the only authoritative version and is solely binding for the interpretation.