General terms and conditions

1.1 The following terms and conditions apply to all contracts, deliveries, services and offers of congiv GmbH.

1.2 Conflicting terms and conditions of the customer shall not become part of the contract even in the event of delivery without express objection.

1.3 Deviations from these Terms and Conditions and/or additions as well as changes and amendments to concluded contracts and the terms and conditions of congiv GmbH applicable to them must be made in writing.

2.1 Offers made by congiv GmbH – in particular with regard to prices, quantity, delivery time, delivery options and ancillary services – are subject to change without notice and are non-binding.

2.2 The scope of the services to be provided by congiv GmbH shall be determined solely by the written contracts. As far as concluded, the sales partner agreement, the order confirmation of congiv GmbH, concluded contracts and additionally these general terms and conditions apply in the following order.

2.3 congiv GmbH reserves the right to deviate from the offer documents or from the order confirmation due to the consideration of mandatory, legal or technical standards and innovations.

2.4. Overdelivery or underdelivery of 10% or at least one piece of the ordered goods is permissible as far as customer-specific mechanical parts are concerned.

3.1 If the customer is a merchant, he is obligated to immediately test delivered goods and software for errors upon receipt and to immediately notify congiv GmbH in writing of any recognizable errors.

3.2 congiv GmbH shall be entitled to have services owed by it rendered by suitable third parties.

3.3 congiv GmbH shall be entitled to partial deliveries and partial services to a reasonable extent.

3.4 Products delivered for testing purposes (hardware, software, data carriers, documents, etc.) remain the property of congiv GmbH. congiv GmbH reserves the right to equip software in such a way that the programs are no longer fully operational after the agreed test period has expired. The customer cannot derive any claims from this.

4.1 Delivery times stated by congiv GmbH are only approximate and non-binding. In the event that the agreed delivery date is exceeded by congiv GmbH by more than 12 weeks, the customer is entitled to set congiv GmbH a reasonable grace period for delivery and, in the event that the grace period expires without results, to withdraw from the contract.

4.2 Changes to the order shall result in the cancellation of agreed dates and deadlines, unless otherwise agreed.

4.3 Delivery and performance deadlines shall be extended appropriately in the event of force majeure and all other obstacles for which congiv GmbH is not responsible and which have a significant influence on the delivery or performance, in particular in the event of strikes and lockouts at congiv GmbH, its suppliers or their subcontractors.

5.1 The prices are net excluding packaging and freight charges. The prices in the current price list or valid offers shall apply, plus the respective statutory value added tax. Deliveries and services for which fixed prices have not been expressly agreed shall be invoiced at the list prices valid on the day of performance.

5.2 Unless a fixed price has been agreed, services shall be invoiced in accordance with the price list valid at the time of acceptance of the order.

5.3 congiv GmbH shall not be bound by the prices quoted if a delivery period longer than four months from the written order confirmation has been agreed. In this case, the prices valid at the time of delivery will be charged.

6.1 Unless otherwise agreed, deliveries of goods are to be paid with 10 days 2% discount or 30 days net, services without discount after 30 days net. In case of default of payment by the customer, congiv GmbH shall be entitled to charge default interest in the amount of 4% above the prime rate of the European Central Bank, unless the customer proves a lesser damage or congiv GmbH proves a higher damage.

6.2 The customer may only offset undisputed or legally binding claims or set them off against claims of congiv GmbH. 6.2 The customer may only offset undisputed or legally binding claims or set them off against claims of congiv GmbH.

6.3 If the customer owes congiv GmbH several payments at the same time, the due debt shall be repaid first – unless the customer has made a repayment provision – and among several due debts, the older debt shall be repaid first.

If a customer is in default with the acceptance of ordered goods, congiv GmbH is entitled to withdraw from the contract or to claim damages for non-performance after setting a reasonable grace period of 14 days at the most. If congiv GmbH demands compensation for damages, this shall amount to 30% of the order value, unless the customer proves a lower damage or congiv GmbH proves a higher damage.

8.1 Unless otherwise agreed, all deliveries shall be made at the expense and risk of the customer.

8.2 Products installed by congiv GmbH on site according to the order or in case of agreed acceptance at the factory, the customer shall immediately test these products together with an employee of congiv GmbH. If the products function substantially in accordance with the contract, the customer shall immediately declare acceptance in writing. If the customer refuses the acceptance, he has to notify congiv GmbH immediately, at the latest within 10 working days after installation, of concrete errors with an exact description in an error log. If neither a declaration of acceptance nor an error message is received by congiv GmbH within the aforementioned period, the work shall be deemed accepted. The customer may not refuse acceptance in the case of insignificant defects.

8.3 The Customer is aware that, in view of the wide range of possible applications and due to its high complexity, the software supplied cannot as a rule be delivered free of errors. In particular, congiv GmbH does not make any compatibility promises.

8.4 Unless otherwise specifically agreed, congiv GmbH warrants against defects in its work performances or software as follows:

8.4.1 congiv GMBH warrants that the products, the work performance and the software comply with the performance specification contained in the user documentation. Software is delivered on tested and error-free data carriers. The customer must report defects in writing immediately after discovery, giving a detailed description of the defects that have occurred.

8.4.2 congiv GmbH reserves the right to remedy defects at its discretion by repair, replacement with defect-free goods or by modifying the performance. If congiv GmbH remedies defects by changing the service, congiv GmbH will not change the originally agreed scope of service in aspects that are essential for the customer. The customer shall support congiv GmbH in the elimination to the extent necessary.

8.4.3 The Customer may only demand a reduction of the remuneration or rescission of the contract in the event of final failure to remedy the defect.

8.4.4 In the event of only an insignificant reduction in the value or suitability of the delivery or service, withdrawal shall be excluded.

8.5 If the customer or third parties make changes to products or software, the warranty claim shall expire unless the customer proves that the defect is not due to the changes.

8.6 The Customer shall not be entitled to remedy defects itself or have them remedied by third parties and to demand reimbursement of the necessary expenses.

8.7 Bei schuldhafter Verletzung von Liefer- und Dienstleistungspflichten ist congiv GmbH zunächst zur kostenlosen Nachbesserung berechtigt, es sei denn, die Nachbesserung ist für den Kunden nicht zumutbar.

9.1 congiv GmbH retains ownership of the delivered products as well as their right of use until the purchase price has been paid in full. If the customer is a merchant, the above reservations shall apply until full payment of all claims arising or to arise from the business relationship. This shall also apply if individual or all claims of congiv GmbH have been included in a current invoice and the balance has been struck and acknowledged. The following shall apply to software: Upon full acquisition of ownership of the program carriers, the customer shall acquire the rights of use specified in the product license.

9.2 The customer shall store the Reserved Goods for congiv GmbH with due commercial care and insure them adequately against fire, water, theft and other risks of damage at its own expense. The customer assigns his corresponding claims from the insurance contracts to congiv GmbH already with the conclusion of this agreement. congiv GmbH accepts the assignment.

9.3 The customer hereby assigns to congiv GmbH all claims arising from the resale of the goods or the re-licensing of the Software. He is revocably entitled to collect these claims. Upon request of congiv GmbH, he shall disclose the assigned claims and their debtors. congiv GmbH is entitled to disclose the assignment to the customer’s debtor.

9.4 In the event of a breach of contract by the customer – in particular default of payment – or an expected cessation of payments, congiv GmbH shall be entitled to take back the Reserved Goods at the customer’s expense or to demand the assignment of any claims for return of the customer against third parties. These rights exist even if the secured claims are time-barred. If necessary, congiv GmbH shall be entitled to realize the goods subject to retention of title and to satisfy these from the proceeds of the sale, offsetting any outstanding claims.

9.5 In case of a right of return of congiv GmbH according to the above paragraph, congiv GmbH shall be entitled to collect the reserved goods still in the possession of the customer. The customer shall allow the employees of congiv GmbH authorized to collect the reserved goods access to the business premises during office hours even without prior notification.

9.6 The exercise of the rights arising from the retention of title or a demand for surrender shall not be deemed to be a rescission of the contract.

9.7 The retention of title shall be released at the customer’s request if the security value exceeds the claims to be secured by more than 20%.

congiv GmbH retains the copyrights and industrial property rights as well as the exploitation rights to all delivered products including the software. The property right notices – including those of third parties – affixed to the program carrier, specification sheets or packaging must be observed. Unless expressly agreed otherwise, the customer acquires a simple right to use the software. Otherwise, the customer’s right of use is governed by the individual license terms for congiv GmbH software for the respective products.

11.1 congiv GmbH shall be liable without limitation only for intent and gross negligence and for the absence of warranted characteristics.

11.2 For other culpable breaches of essential contractual obligations, congiv GmbH shall be liable, regardless of the legal grounds, only for the amount of damages typical for the contract, i.e. foreseeable damages.

11.3 congiv GmbH shall not be liable for slightly negligent breach of other contractual obligations.

11.4 congiv GmbH shall not be liable for damages if the customer could have prevented their occurrence by taking reasonable measures – in particular program and data backups.

11.5 Liability shall be limited in any case – except in case of intent – to the amount of the coverage sum of the business liability insurance taken out by congiv GmbH.

11.6 The provisions of this clause 11 shall also apply in favor of the employees and other vicarious agents of congiv GmbH.

11.7 The provisions of the Product Liability Act shall remain unaffected.

The customer is obligated to inform congiv GmbH immediately of any claims of third parties regarding the delivered congiv GmbH software and to leave the legal defense to congiv GmbH at its expense. congiv GmbH is entitled to carry out necessary changes at its own expense due to third party property right claims, even for delivered and paid goods.

The customer is not entitled to assign contracts concluded with congiv GmbH as a whole or individual rights or obligations arising therefrom or otherwise to transfer rights and obligations arising from contracts concluded with congiv GmbH in whole or in part to third parties without the consent of congiv GmbH. This also applies to warranty claims.

The customer authorizes congiv GmbH to process, store and evaluate the data received about him in connection with the business relationship within the meaning of the Federal Data Protection Act (§ 28 BDSG).

15.1 In case of doubt, these Terms and Conditions shall remain binding in their remaining parts even if individual or several provisions are legally invalid. Should any provision be or become invalid in whole or in part, it shall be replaced by a provision that comes as close as possible to the economic purpose of the invalid provision.

15.2 The law of the Federal Republic of Germany shall apply exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980.

15.3 Place of performance for all deliveries and services of congiv GmbH is Pöcking.

15.4 If the customer is a merchant within the meaning of the statutory provisions or has its registered office abroad, it is agreed that Munich shall be the exclusive place of jurisdiction.