Conditions of Sales and delivery
System Set-up; Other Services
1.1
Funktel shall supply the system including any necessary network
between the hardware components and shall carry
out
necessary tests, instruction and, if required, training courses.
Where a network is provided by the Client, Funktel shall have this
checked prior to start-up and have any necessary amendments carried out.
1.2
The Client shall ensure that the installation of the system at the
Client's location is possible in compliance with Funktel Installation
Specifications. The Client is responsible for all approvals (e.g.
Deutsche Telekom AG, authorities and any other third parties) and shall
procure all necessary auxiliary materials and consumables, which must
comply with Funktel specifications.
With regard to the warranty Funktel shall be entitled to switch the
system to a Service Centre and to carry out maintenance and amendment
works via the public telephone network.
1.3
System maintenance, including repair of faults and damage as well as
further services, shall be agreed in a separate Service Agreement. In
this case Funktel shall be obliged to carry out all necessary or
requested works to the
system, also those requested by authorities or third parties.
1.4
Works that are not of a low-voltage type are the responsibility of the
Client. The power supply connection and the operating power shall be
provided by the Client.
2.
Software Rights of Use; Ownership
2.1
Funktel shall provide the software and the relative documentation.
However, even with the most careful software compilation to the state of
the art, the possibility of software errors cannot completely be
excluded under all application conditions.
The Client shall allow only qualified personnel to use the
software. If Funktel ascertains that supplementary training of the
personnel is necessary, then the Client shall grant Funktel an
appropriate training contract, and this shall be separately invoiced.
2.2
Funktel shall grant the Client a non-exclusive and non-transferable
right to use the supplied software on Funktel hardware within the
Federal Republic of Germany. The software is licensed solely for use on
the central computer intended for this purpose. The software may be used
on only one terminal and at only one location, and any further use is
not admissible. This shall not apply where multiple use has been
expressly agreed for the software.
2.3
Ownership and/or all other rights to the software shall be retained by
Funktel. The Client shall be obliged to provide the software with the
appropriate markings – particularly copyright notices – if the software
is adapted or integrated. The Client shall not reverse engineer or
reassemble the software and shall not decompile any software modules.
2.4
The right to use the software shall expire when the Client is no longer
the proprietor or legal owner of the
hardware.
2.5
The software may be neither copied nor adapted without the written
consent of Funktel. The Client shall ensure without limitation of time
that the software and the relative documentation including any copies
thereof, also in any adapted form, are not disclosed to third parties
without the consent of Funktel.
2.6
After expiry of this license agreement the Client shall destroy the
original software and any copies thereof and
confirm this to Funktel.
2.7
If the Client contravenes one of the imposed obligations, Funktel shall
be entitled to claim, notwithstanding any further claims, contractual
damages equivalent to the license fee for one year of the relevant
software. The Client has the possibility to prove that the actual
damages incurred were lower.
2.8
Conformance of the software procedures with legal or in-company
regulations is the responsibility of the Client.
2.9
Software maintenance shall be agreed separately in the Service
Agreement. In accordance with performance specifications this shall
include all measures, regarded by Funktel as necessary to maintain the
operational reliability of the system, in particular amendments and
improvements of a technical nature (software updates).
3.
Warranty
3.1
Funktel shall be obliged to repair or replace the hardware at no cost,
in the event of faults arising within one year following operational
readiness, due to circumstances occurred before the date of delivery.
Replaced parts shall become the property of Funktel.
Funktel must remedy the fault by repair or replacement delivery within a
reasonable period of time. Otherwise the Client shall be entitled to
demand a reduction in the purchase price or to return the faulty part
against refund of the appropriate purchase price. This shall not apply
where the reduction in value or suitability is inconsiderable.
3.2
For a period of one year following handover Funktel warrants that the
software conforms with the documentation on condition that it is used
according to contract specifications and is not adapted or modified.
If the software does not conform with the documentation and if Funktel
repeatedly fails to remedy the defect, then the Client shall be entitled
to demand a reasonable reduction in the license fee or to return the
software against refund of the appropriate license fee. Where software
is used on the Client's own hardware, the warranty shall apply solely to
the supplied software and not to any interaction with the hardware. The
Client shall ensure that his operating system is compatible with the
Funktel system.
3.3
The warranty shall not apply in the event of natural wear and tear, in
the event of incorrect usage or for other reasons outside the control of
Funktel.
Funktel accepts no responsibility whatsoever for correct operation of
the software where the Client, with Funktel approval, connects
third-party products to the system,.
4.
Transfer of Risk; Default; Damage Liability
4.1
Risk of loss and damage is transferred to the Client upon delivery of
the system and other material.
4.2
If Funktel is in default with its delivery/services for reasons within
Funktel's control, then the Client shall be entitled to claim damages to
an extent no higher than 10 % of the price for the part of the delivery
item/service, that could not be supplied/provided on time. Further
claims for damages by the Client are excluded in all cases of delayed
performance/delivery, even after expiry of a final deadline that has
been set for Funktel. This shall not apply in cases of intent or gross
negligence, when liability applies anyway, and this does not represent
any change in the burden of proof to the disadvantage of the Client. The
right of the Client to revoke the contract following expiry of a final
deadline set for Funktel remains unaffected by this.
4.3
Unless otherwise regulated in these conditions Funktel shall be liable
for damages due to infringement of contractual or non-contractual
obligations only in the event of intent, gross negligence, lack of
warranted qualities, infringement of substantial contractual obligations
or according to product liability legislation. In the event of
infringement of substantial contractual obligations the liability
towards businessmen and contractors under the terms of § 24 AGB
legislation is limited to a maximum of a half million EUR per case of
damage, unless the foreseeable damage typical for the contract is higher
or is attributable to intent or gross negligence. Liability based on
compulsory statutory regulations remains unaffected by this. This does
not represent any change in the burden of proof to the disadvantage of
the Client.
4.4
Liability limitations shall not apply in the case of damage resulting
from injury to life, limb or health.
5.
Prices, Amendments, Payment Conditions, Off-setting
5.1
The above-mentioned delivery items and services, including expenditure
for acceptance testing together with the flat charge for packaging and
freight for the delivery ex works, including disposal fees, shall be
invoiced at Funktel's valid list prices.
If deliveries and services are performed later than four months after
order confirmation for reasons outside of Funktel's control, then
Funktel shall be entitled to claim the list price applicable at the time
of performance.
5.2
The sales price is payable, without any deductions, to 1/3 after
confirmation of order, 1/3 after delivery and the remainder 10 days
after submission of invoice, but no later than 30 days from the date of
delivery.
5.3
The one-off license fee for the software is due for payment upon receipt
or provision of the software.
5.4
All other fees and charges are due for payment without deduction ten
days after the date of the invoice.
5.5
The Client shall be entitled to offset only undisputed or legally
determined claims.
6.
Compensatory Damages, Fulfilment of Contract
6.1
If the Client does not have the purchased hardware and software intended
for use partially or completely installed despite a final deadline
having been fixed, then Funktel shall be entitled to claim reimbursement
of the expenditure for already performed and commissioned services as
well as punitive damages amounting to 10 % of the purchase price and
rental fee or of the respective part as compensation for damages
incurred.
6.2
A claim for damages shall be reduced or shall not apply where the Client
can prove that the damage is considerably lower or was not incurred.
6.3
If the Client acquires, installs or uses a system or parts thereof from
a third party instead of the Funkel system/system components that have
not been installed, then Funktel's legal entitlement for performance of
contract shall remain unaffected. In these cases Para. 6.1 shall not
apply.
7.
Reservation of Proprietary Rights
7.1
Funktel retains the proprietary rights to the delivery items until full
payment is made.
7.2
If the Client is in breach of contract, particularly in the event of
delay in payment, Funktel shall be entitled to repossess the delivery
items after appropriate dunning procedures and the Client shall be
obliged to return the same.
7.3
Assertion of reservation of proprietary rights as well as seizure of
delivery items by Funktel shall not be interpreted as cancellation of
the contract.
7.4
If the Client surrenders or assigns the delivery items to third parties,
then he assigns all claims at this time to Funktel to the extent of the
price agreed between Funktel and the Client (including turnover tax),
which result from the surrender or assignment, and irrespective of
whether the delivery items are surrendered or assigned without or after
processing. Funktel agrees not to recover the claims directly on
condition that the Client fulfils his payment obligations in a regular
manner and is not in payment default. Where this is the case, Funktel
shall be entitled to demand that the Client discloses the assigned claim
and its debtors, provides all information necessary for seizure, hands
over relevant documentation and informs the debtors of the assignment.
7.5
Processing, reworking or adaptation of the delivery items by the Client
is always carried out for Funktel. If the delivery items are combined
with other items not belonging to Funktel, then Funktel shall acquire
co-ownership of the new item proportionately to the value of the
delivery item to the other processed items at the time of processing.
7.6
Where the delivery items are inseparably linked with other items not
belonging to Funktel, then Funktel shall acquire co-ownership of the new
item proportionately to the value of the delivery items to the other
linked items.
7.7
The Client shall not be entitled to either pledge or transfer ownership
of the delivery items as security. With seizures or confiscations or
other orders by third parties, the Client must inform Funktel of this
without delay and provide Funktel with all information and documentation
required to safeguard Funktel's rights. The Client must inform third
parties of the ownership of Funktel.
8.
Other Conditions
8.1
The Client shall not be entitled to transfer the Contract to a
replacement client.
8.2
Purchasing conditions by the Client deviating from these present
Conditions of Sale and Delivery shall only apply when
these have been expressly accepted by Funktel in writing.
8.3
Deadlines shall be extended automatically by a reasonable period, e.g.
in the event of strikes, lock-outs, force majeure
and other occurrences, which cannot be influenced by Funktel.
8.4
Funktel reserves the right to transfer the performance of its
obligations arising from this contract to suitable third parties.
8.5
Additional stipulations and amendments to the contract must be in
written form. This also applies to any amendment
of the contract clause.
8.6
Should one of these contract clauses be ineffective, then this shall be
replaced by an effective clause that best meets
the intention and purpose of the original clause. Insofar as necessary
the Client is obliged to do everything in his power
to achieve this objective.
8.7
Export of hardware and software is subject to German export control
regulations and requires approval both by
Funktel and the responsible authorities.
8.8
This contract is governed by the laws of the Federal Republic of
Germany. Sole place of jurisdiction is Salzgitter.
