Siebenwurst Consulting & Services GmbH
Oberrossbacher Str. 6
Tel.: +49 89-552956-0
1.1 These Terms and Conditions of Siebenwurst Consulting & Services GmbH (hereinafter "SCS") shall apply to all and any contracts between SCS and its customers for the provision of engineering services (hereinafter "Services") insofar as the customer is a juristic person or natural person acting, at the time of conclusion of the contract, in the line of his commercial or professional activity (entrepreneur), or a legal entity under public law or a special fund under public law.
1.2 These Terms and Conditions apply exclusively. Any Terms and Conditions of the customer shall only apply if and to the extent SCS explicitly acknowledges them in writing. In particular, SCS's silence regarding such Terms and Conditions shall not be considered as a recognition or approval thereof; the same applies to any future agreements. These Terms and Conditions shall apply in place of any General Terms and Conditions by the customer (such as Conditions of Purchase), even if these General Terms and Conditions stipulate that acceptance of an order is regarded as unconditional acceptance of the General Terms and Conditions.
1.3 These Terms and Conditions apply in their current version as a framework agreement concerning future agreements for the sale and/or delivery of goods to the same customer, without the necessity for SCS to point them out again in each case.
1.4 As far as individual arrangements are made with the customer in individual cases, these take precedence over these Terms and Conditions. The contents of such individual agreements must be set forth as a written agreement or by written confirmation by SCS.
1.5 Legally relevant declarations and notifications delivered to us by the customer after conclusion of contract (e.g. deadlines, notice of defects, declaration of withdrawal, or reduction in volume) are not effective unless made in writing.
2. Contract conclusion
2.1 Communications from SCS to the customer, which are marked as "Quotations", are subject to change and are not binding. They shall be regarded as invitations to the customer to place an order.
2.2 Orders placed or services ordered by the customer are considered as binding contractual offers. If nothing else results from the order, SCS is entitled to accept this contract offer within two weeks after receipt.
2.3 Any agreement is only constituted - also in the course of ongoing business transactions - if SCS accepts the customer's order. Acceptance can be declared either in writing (e.g. by means of a confirmation of order) or by delivery of the ordered products to the customer. For the contents of the contract, the order confirmation by SCS is decisive.
3. Details / Variations / Information
3.1 Any information relating to SCS's products and services, in particular any illustrations, drawings, tables of content, performance information and other information contained in offers and publications from SCS are to be considered as approximate average values.
3.2 The documents belonging to the offer such as drawings, illustrations, technical data, references to standards as well as statements contained in advertisements are not considered as information on quality, assurance as to their properties, or guarantees, unless they are explicitly designated as such in writing.
3.3 SCS reserves the right to deviate from technical and design descriptions and statements in brochures, catalogues and other sales documents, and to replace products with technically equivalent or better products without the customer being entitled to derive any rights therefrom against SCS.
3.4 The customer has to fully inform SCS about all facts that are relevant for the performance of services. SCS is not obliged to inspect data, information or other services provided by the customer with regard to their completeness and accuracy, unless this is due in consideration of the particular circumstances of the individual case, or if the obligation to inspect was explicitly stipulated as a contractual obligation. If works have to be carried out at the customer's premises, the necessary workplaces and labour resources shall be provided to SCS free of charge.
3.5 SCS is fully entitled to call on third parties for the fulfilment of the agreement. If employees whose participation was agreed upon under the contract are unable to attend work due to reasons for which SCS is not responsible, SCS is entitled to replace these employees with other suitable employees.
4. The customer's cooperation duties
4.1 As a material contractual obligation, the customer undertakes to ensure that all agreed obligations of cooperation and provision of services in the required quality and at the deadlines agreed or required for project implementation are provided without any additional costs for SCS. Insofar as this is necessary to the success of the project, the customer shall provide in particular his own personnel in sufficient quantities, as well as competent contact persons for the entire duration of the project. Insofar as requirements are set down in the functional specification or elsewhere in the agreement, which have to be operated by the customer or by third parties, the customer has to ensure that these requirements are met.
4.2 Should any of the customer's information or documents prove incorrect, incomplete, inconclusive or objectively non-executable, the customer shall, immediately upon notification by SCS, carry out any necessary corrections and/or additions. The customer shall immediately after notification by SCS remedy or have remedied any defects or malfunctions in delivered components.
5. Intellectual Property Rights / Rights of use
5.1 SCS expressly reserves all property rights and copyrights in catalogues, technical documentation (e.g. drawings, plans, weights and dimensions, calculations) and any other product descriptions or documents, including documents in electronic form. The customer undertakes not to make available the documents mentioned in the above sentence to third parties, unless with prior express consent in writing by SCS.
5.2 In the case of delivery of goods or services provided in the context of a customer order (e.g. concepts, design drawings, software etc.), SCS grants the client a simple, non-exclusive right to use the results, unless expressly otherwise arranged in the agreement. The right of use will be specified in the agreement specifically concluded in each individual case.
5.3 Regardless of the extent of the transfer of rights to the customer, SCS is entitled in any case to exploit any ideas, concepts, know-how acquired etc. for further developments and services, including for other customers.
5.4 Any further transfer of software programs shall be carried out in accordance with the license conditions of the respective licensor. The scope of performance results from the licensors' license conditions and from the service descriptions and other user information as set down in printed user manuals or available as data files. This also applies in particular to application restrictions.
6. Dates and Deadlines
6.1 Dates and deadlines are only binding after express confirmation by SCS in writing. Insofar as no binding deadlines and dates are agreed, SCS is in default only after the customer has unsuccessfully set a reasonable deadline for delivery of the goods. In any and all cases, deadlines only become effective upon the full and complete cooperation required from the client as well as possibly upon receipt of an agreed advance payment. Any later requests for changes or delayed cooperative acts on the part of the customer will delay the performance deadlines correspondingly.
6.2 If the delivery due by SCS is delayed by unpredictable circumstances for which SCS is not responsible (e.g. industrial disputes, operational disturbances, transport obstacles, lack of raw materials, official measures; each point also applies to SCS's preliminary suppliers) the customer will be immediately informed about the non-availability of the services and about the expected new delivery period. In this case SCS is entitled to withdraw from the contract in whole or in part. In the case of cancellation by SCS, SCS shall immediately reimburse the customer for any performances already realised.
6.3 SCS is entitled in particular to withdraw from the contract, if proper and timely delivery by a presupplier fails despite an appropriately completed hedging transaction for reasons for which SCS is not responsible.
6.4 If a delivery date or delivery period has been bindingly agreed and is exceeded due to events in terms of Paragraphs 2.6 to 3.6, the customer is entitled to withdraw, after fruitless expiry of a reasonable grace period due to a non-performed portion of the agreement if he cannot be objectively expected to continue the agreement. Any further claims on the part of the customer, in particular such on compensation for damages, are excluded in such a case.
6.5 If a binding delivery or performance period is exceeded for reasons which SCS has to answer for, the client shall be entitled to rescind the contract after the expiry of a reasonable grace period. Damage claims apply according to the regulations in clause 12 of these Terms and Conditions.
6.6 If the customer fails to fulfil his duties to co-operate or to contribute to the project or to provide goods, be this in part or completely, and if the concurring deadlines lose their binding effect, SCS shall not be in default. After an unsuccessful reminder SCS is entitled to claim damages including possible additional expenses. In this case, the risk of accidental loss or accidental deterioration of the delivery item passes to the customer at the date of his defaulting. If the customer fails to fulfil his duties to co-operate or to contribute to the project or to provide goods even after a reasonable grace period following the further reminder, SCS is further entitled to terminate the contract without notice. In such a case SCS is entitled to replacement and compensation claims at least in an amount resulting from § 649 BGB; any further claims by SCS remain unaffected. The same right is due to SCS if in consequence of the delay, SCS is unable perform the project within a reasonable period of time or only at significantly higher costs, for example because of other commitments.
7. Partial delivery / transfer of risk
7.1 SCS reserves the right to carry out partial deliveries to a reasonable extent.
7.2. The risk of accidental loss or accidental deterioration of the delivery item shall pass to the customer on dispatch even if SCS has assumed the cost of dispatch or other additional services or if a partial delivery has been made. Attention is invited to Paragraph 6.6. 3 of these Terms and Conditions. 2
8.1 If the delivery requires acceptance, the customer is obliged to perform such. Minor defects which do not seriously affect the suitability of the delivered goods or services for the contractually specified purpose, shall not entitle the customer to refuse acceptance, without prejudice to his right to assert statutory claims based on defects.
8.2 Acceptance is considered granted if the customer denies declaration of acceptance in violation of above Paragraph 8.1 or despite timely notice; or if the customer does not immediately declare acceptance in writing after conducting a joint inspection, although being prompted to do so by SCS with a period of seven working days, unless the customer specifies in writing within this period any defects, due to which he denied acceptance, whereby SCS shall once more inform the customer of the intended meaning of his behaviour at the beginning of the period.
8.3 In case of self-contained partial services, SCS is entitled to partial acceptance.
9. Prices / Terms of payment / Insecurity objection
9.1 All prices are in Euros plus VAT to be borne by the customer in the respective statutory amount.
9.2 If an hourly fee or daily rates have been agreed, the SCS price lists current at the time of performance apply unless otherwise agreed in an individual case. No price increase shall take place for services rendered within four months after conclusion of the contract.
9.3 SCS's invoices are payable without discount and free of charge in accordance with the agreed payment plan or otherwise within 30 days after receipt of the invoice. The credit note to SCS's account decides the timeliness of payment as indicated on the invoice.
9.4 SCS reserves the right to demand reasonable advance payments.
9.5 The customer is entitled to set-off or retention only insofar as his counterclaims are established, undisputed or acknowledged by SCS in writing.
9.6 If there are indications after conclusion of the contract that SCS’s claim to the purchase price is at risk through insufficient ability of the customer (e.g. by an application for opening of insolvency proceedings) then, according to the statutory regulations, SCS is entitled to deny performance and, if necessary, to withdraw from the contract (Section 321 of the BGB). In the case of contracts concerning the manufacture of custom items (individual productions), SCS is entitled to declare such withdrawal immediately, with the statutory provisions concerning the dispensability of setting a deadline remaining unaffected.
10. Retention of Title
All delivered goods shall remain in the sole ownership of SCS until full payment of all of our current and future claims from the purchase contract and our current business relationship. Any pledge, security transfer or other exploitation is prohibited, unless the purchase was made explicitly for the purpose of resale. In such a case, the customer is revocably entitled to resell the reserved goods in the course of proper business in his own name, provided he is not in arrears with his payment obligations towards SCS and no prohibition of assignment exists between the customer and his customers. In the course of proper resale of the goods the customer shall either point out to his customers the retention of title by SCS or himself reserve the ownership of the goods.
11. Claims for defects by the CUSTOMER
11.1 Should SCS have performed a defective delivery or service, then the customer shall give SCS the opportunity to post-perform within a reasonable time limits, provided the supplementary performance is not unsuitable in a particular case or special circumstances exist which justify an immediate withdrawal considering the mutual interests. In any case, the right to choose between rectifying the defect or delivery of a defect-free item is at SCS's discretion. SCS's right to refuse the selected type of remedy under the statutory conditions, remains unaffected.
11.2 The customer's defect claims presuppose that he has fulfilled his statutory examination and complaint obligations (Sections 377 and 381 of the HGB). The customer is obliged to inspect the delivery item for visible defects, which are conspicuous to an average customer. Obvious defects, such as the absence of components or documents, as well as instantly observable damage shall be reported to SCS within one week after receipt of the delivery in writing. Defects which only become obvious later before the expiry of the limitation periods for defect-related claims, must be reported to SCS in writing within a week after their detection by the customer. In case of non-compliance with the obligation for inspection and lodging a complaint, the delivery item is deemed to have been approved.
11.3 Warranty claims must be made by the customer in writing naming all detected defects and stating the circumstances under which they were detected. A defect does not exist if an error alleged by the customer cannot be reproduced. Should the customer have made interventions in supplied components, hardware or software, then his defect claims exist only, if he can prove that his intervention was not the cause for the defect.
11.4 In the event that a defect alleged by the customer does not exist, or, in particular, that an alleged deficiency cannot be reproduced, SCS is entitled to demand a reasonable compensation for its expenses, unless there was only slight negligence on the part of the customer.
11.5 The customer's claims for damages or compensation for futile expenses exist only in accordance with clause 12 of these Terms and Conditions.
12. Other liability
12.1 Unless otherwise stated in these Terms and Conditions including the following provisions, in case of any breach of contractual or non-contractual duties, SCS's shall be liable in compliance with the relevant legal provisions.
12.2 SCS shall be liable for damages - no matter for what legal grounds - in case of wilful intent and gross negligence. For simple negligence, SCS shall be liable only
a), for damages arising from injury to life, body or health
b) for damage resulting from the breach of material contractual obligations (obligations the proper fulfilment of which constitutes a condition sine qua non and on the fulfilment of which the customer regularly relies and may rely); in this case, SCS's liability is, however, limited to reimbursement of the foreseeable, typically occurring damages.
Further claims for damages are excluded.
12.3 SCS is liable for the re-constitution of data only if the customer has made sure that lost data can be recovered at reasonable costs. The customer is therefore obliged to regularly back up data and programs at adequate intervals.
12.4 Insofar as in accordance with the above provisions SCS's liability is excluded or limited, this circumstance extends to the personal liability of its organs, employees and other staff, representatives and agents and also applies to all claims for negligence in contract negotiations, violation of obligations and claims arising from tort (in particular Sections 823 et seq, of the BGB, including any recourse in accordance with Section 840 of the BGB, Section 5 of the ProdHaftG and Section 426 of the BGB), but not for claims in accordance with Sections 1 and 4 of the ProdHaftG.
12.5 The customer's right to rescind the contract as a result of an infringement of contractual duties due to reasons for which SCS is not responsible, and which does not consist in a defect in a purchased item or service, is excluded.
12.6 There is no connection between the reversal of the burden of proof and the foregoing stipulations.
13. Limitation period
13.1 The customer's warranty claims shall fall under the statute of limitation within one year of the statutory onset of the time of limitation. Exempted herefrom shall be claims under Sections 438.1, No. 1, 2; and 634a.1 No. 2 of the BGB.
13.2 Other contractual claims by the customer owing to breaches of contract shall expire – if the customer is an entrepreneur – within one year from the legally mandated statute of limitation.
13.3 The legally mandated statutes of limitation remain unaffected by the rules above in the following cases:
for damages arising from injury to life, body or health
for other damages resulting from intentional or grossly negligent breach of duty by SCS, its legal representatives or vicarious agents;
for the customer's right to rescind the contract as a result of an infringement of contractual duties for which SCS is responsible, and which does not consist in a defect in a purchased item or service;
for claims due to malicious concealment of a defect or to a quality guarantee in terms of Section 444 or Section 639 of the BGB;
for claims for compensation of costs in terms of Section 478.2 of the BGB.
14. Place of jurisdiction and applicable law
14.1 The place of performance for all deliveries and services is Munich.
14.2 The customer is a merchant within the meaning of the Commercial Code, a legal entity under public law or a special fund, the exclusive - including international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the headquarters of SCS. SCS is, however, entitled to take legal action at the customer's general place of jurisdiction.
14.3 These General Terms and Conditions and all legal relationships between SCS and the customer shall be governed exclusively by the laws of the Federal Republic of Germany under exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The prerequisites for and effects of the retention of title according to Paragraph 10 of these Terms and Conditions are subject to the laws applicable at the respective location of the goods, if the choice of law in favour of German law is inadmissible or ineffective at this location.
15. Final Provisions
15.1 Changes, ancillary agreements and additions to this agreement require an express, written agreement to be valid. This also applies to a waiver of this written form clause.
15.2 Should one of the above provisions be or become invalid, the validity of the remaining provisions shall remain unaffected. The contracting parties are obliged to replace the invalid provision with an arrangement as similar as possible i