Mon. - Thurs. 08:00 - 12:00, 13:00 to 17:00 h
Fri. 08:00 - 12:00, 13:00 to 15:00 h
GmbH Registered office: 4700 Eupen HRE 52058 Personally liable partner: M. K. JUCHHEIM GmbH, registered office: 36039 Fulda, Managing Directors: Dipl.-Ing. Bernhard Juchheim, Dipl.-Kfm. Michael Juchheim, Bruno Radermacher VAT No.: BE 0408 057 719
IBAN-Nr. BE47 3480 3356 3680 SWIFT : BBRU BE BB
IBAN-Nr. BE22 3100 5419 0047 SWIFT : BBRU BE BB
IBAN-Nr. BE70 4274 1700 0125 SWIFT : KRED BE BB
(PDF166kByte) Edition 10/2018
1. Scope of the general conditions
1.1. Unless otherwise expressly agreed by the Parties in writing, the General Terms and Conditions shall apply to all Agreements between the Customer and the Supplier concerning the sale of Products and/or the provision of Services.
1.2. The General Terms and Conditions also apply to all future Agreements between the Supplier and the Customer, even if the Supplier does not explicitly refer to the General Terms and Conditions in future Agreements.
1.3. By concluding a Contract, the Customer waives the application of its own general purchase conditions and acknowledges having read the General Terms and Conditions and accepting them unconditionally. A reference by the Customer to its own general terms and conditions shall in no way be considered as an acceptance by the Supplier of the Customer's general terms and conditions.
1.4. In case of conflict between the provisions of the various contractual documents constituting the Contract, the order of preference shall be the following (in descending order of priority): (i) the Master Agreement (if applicable), (ii) the Order Confirmation, (iii) the General Conditions, (iv) the Specifications.
2.1. In the Agreement, all capitalized terms shall mean the following:
a. Customer : The natural or legal person who placed the order and to whom the order confirmation is addressed;
b. Order : a document substantially corresponding to the Quotation sent by the Customer to the Supplier and listing the Services and/or Products ordered by the Customer from the Supplier;
c. General Terms and Conditions : these general conditions ;
d. License terms : the licence conditions of the Software made available to the Customer by the Supplier; the provisions of parts I "GENERAL PROVISIONS" and V "LICENSE SOFTWARE" of the General Terms and Conditions shall apply to this making available of the Software by the Supplier to the Customer;
e. Order Confirmation : The order confirmation sent by the Supplier to the Customer;
f. Contract : the contract between the Supplier and the Customer, confirmed in the Order Confirmation, to which the various contractual documents apply: (i) the Master Agreement (if any), (ii) the Order Confirmation, (iii) the General Conditions, and (iv) the Specifications;
g. Framework contract : a contractual document signed by the duly authorized representatives of both parties concluding one or more contracts, regardless of the name given to that contractual document by the parties ;
h. Deliverable : the agreed result (if any) of the Services provided by the Supplier ;
i. Intellectual Property Rights : patents (including patent applications, reissues, divisionals, continuations and renewals), utility models, copyrights, trade secrets, trademarks, service marks and any other form of protection of intellectual property rights provided by law, the law of a jurisdiction or bilateral or multilateral international treaties ;
j. Supplier : JUMO Automation Srl, with registered office at Industriestraße 18, 4700 Eupen, Belgium, registered with the B.C.E. under number 0408.057.719 ;
k. Confidential Information : (i) any documents or information disclosed between the Parties in tangible form and clearly marked as "Confidential" or "Proprietary"; (ii) any other documents or information disclosed between the Parties orally, visually, or in machine-readable, electronic or non-tangible format that is confirmed in writing to be confidential or Proprietary within ten (10) days of disclosure and (iii) any documents or information that might reasonably be expected to be considered confidential Confidential Information does not include information or material that (i) has already become publicly known for any reason other than its disclosure in violation of the Agreement, (ii) had previously come to the knowledge of the Receiving Party on a non-confidential basis, (iii) was lawfully received by the Receiving Party from a source other than the Disclosing Party, provided that such source is not bound by a confidentiality agreement with the disclosing Party or is otherwise not entitled to transmit the information by virtue of a legal, contractual or fiduciary obligation, (iv) is required by law to disclose, provided that the receiving Party promptly notifies the disclosing Party in writing of such requirement for disclosure so that it may seek an order prohibiting or restricting such disclosure ;
l. Software : a computer program (which may include documentation) integrated into a product or supply, which means the expression, in any form, language, notation, or code, of a set of instructions to enable a computer to perform a particular task or function ;
m. Offering : the document sent by the Supplier to the Customer which lists the Services and/or Products that the Customer can order from the Supplier ;
n. Part : The Customer and/or the Supplier ;
o. Product : the Supplier's standard product sold by the Supplier to the Customer under the terms of the Agreement; the sale of Products by the Supplier to the Customer is subject to the provisions of Part I "GENERAL PROVISIONS" and Part II "SALE OF PRODUCTS" of the General Terms and Conditions;
p. Services : services in the broadest sense ordered by the Customer from the Supplier, as confirmed in the Order Confirmation, which may include (i) installation, implementation, development and/or support services and (ii) (if applicable) may result in the provision of a Performance; the provision of Services by the Supplier shall be subject to the provisions of Part I "GENERAL PROVISIONS" and Part III "SUPPLY OF SERVICES" of the General Terms and Conditions ;
q. Development Services : Software development services for the Customer; the provision of Development Services by the Supplier shall be subject to the provisions of Part I "GENERAL PROVISIONS" and IV "PROVISION OF SOFTWARE DEVELOPMENT SERVICES" of the General Terms and Conditions ;
r. Specifications : the technical specifications of the Product, the Product and/or the Services ordered by the Customer and contained in (i) a separate contractual document and/or (ii) the Order Confirmation.
3. Conclusion of a contract - Offers
3.1. A Contract shall be deemed to have been formed at the time of dispatch of the Order Confirmation. A Contract may only be amended with the express written consent of the Parties.
3.2. Offers made by the Supplier to Customer and/or Orders placed by Customer shall not be binding on the Supplier.
3.3. Technical data, descriptions and information contained in promotional material and technical brochures of the Supplier shall not constitute data and descriptions by which the Services and/or Products are contractually bound unless the Supplier has expressly agreed otherwise in writing.
3.4. Advices regarding the applications and technical specifications of the Products, Services and/or Deliverables in the Specifications are given to the best of the Supplier's ability. All information and statements on the compatibility and applicability of the Products and/or Products provided by the Supplier shall be without prejudice to the Customer's exclusive responsibility to check the accuracy of the advice before using the Product and/or Product and to check whether the Product and/or Product is suitable for the purpose intended by the Customer.
4.1. Prices are net, excluding taxes, transportation, insurance and packaging, and are expressed in euros.
4.2. The prices agreed at the time of the conclusion of the relevant Contract shall apply, in particular those indicated on the Order Confirmation. These prices shall be increased by the VAT applicable on the day of delivery of the Services and/or sale of the Products. In case of delivery of Services and/or sale of Products abroad, the price may be increased by other taxes specific to that country. The prices communicated by the Supplier to the Customer and/or the prices agreed in the Agreement are only valid until 31 December of the year in which they are communicated or agreed.
4.3. Notwithstanding the foregoing, when concluding a Framework Agreement, the Supplier reserves the right to unilaterally and proportionally adjust its prices after the Framework Agreement has been concluded in the event of cost changes due to wage increases, price increases by its suppliers or exchange rate fluctuations. Price adjustments under current and future Agreements shall apply up to a maximum of 80% of the final price and shall relate to parameters reflecting actual costs. Such price adjustments must be communicated in writing before the new prices take effect. If the Customer does not object within fourteen (14) days of the notification of the new prices, the latter shall be deemed accepted by the Customer. In accordance with Article 57 of the Act of 30 March 1976 on the regulation of price revision, the price revision formula is set as follows :
5.1. Insofar as no other payment period has been agreed upon, the Supplier's invoices shall be payable at the Supplier's registered office within thirty (30) days from the invoice date. On the due date shown on the invoice, the Customer shall automatically and without prior notice be liable for interest on arrears at the rate of 12% per annum, as well as for liquidated damages at the rate of 15% of the amount of the invoice with a minimum of EUR 90.00. Payments made by the Customer shall be charged as follows: i) firstly on the fixed fee and other charges, then ii) on the interest and finally iii) on the price.
5.2. If the Supplier grants the Customer a discount for cash payment as a commercial gesture, the amount of the discount is calculated on the basis of the final invoice amount (excluding VAT) less any specific taxes in case of delivery abroad.
5.3. A party may only apply set-off if its claims are based on an enforceable court decision or the express consent of the other party.
5.4. 5.4. If (i) Customer fails to pay a due invoice or exceeds a specified payment term, or (ii) Supplier obtains disturbing information about Customer's solvency or financial standing (e.g.: a cheque from Customer is not in order), Supplier shall be entitled to set off the amount due. (ii) The Supplier obtains alarming information about the Customer's solvency or financial standing (e.g., a check from the Customer is not in order, the Customer is in a manifestly insolvent situation, bankruptcy proceedings are being conducted, have been filed, have been instituted or have been pronounced against the Customer), the Supplier is entitled to immediately demand all that it owes from the Customer and/or to require security (collateral) for it, as well as to perform the delivery of Services and/or the sale of Products in the future only against prepayment or security. Furthermore, the Supplier is entitled to suspend all further provision of Services and/or sale of Products to the Customer and/or to terminate the Agreement without the Customer being entitled to any notice period or compensation.
6.1. Unless otherwise agreed in writing, all deliveries by the Supplier to the Customer shall be made "ex works" (EXW), in accordance with the provisions of the Incoterms (latest edition in force).
6.2. The delivery times for Products or Services stated by the Supplier are strictly indicative.
6.3. Any delivery period expressly agreed upon between the Parties shall not begin to run until the Supplier has received all data and documents required for the performance of the Delivery/Service.
6.4. Even if a term for delivery/service has been expressly agreed, failure to deliver/service on time or the material impossibility to perform the delivery/service shall not entitle the Supplier to compensation, nor shall it entitle the Supplier to refuse acceptance of the delivery/service by the Customer, nor shall it entitle the Customer to rescind the Agreement at the Supplier's expense.
6.5. The delivery/service periods expressly agreed between the parties shall apply subject to active cooperation by the Customer.
6.6. If the Customer fails to use the Products/Services, fails to take delivery of the Products or causes a delay in the delivery/service, the Supplier shall be entitled, without prejudice to its other rights, to claim compensation for the resulting costs. Furthermore, the Supplier shall not be liable for Products and/or Services entrusted to it which are not taken back by the Customer.
7. Transportation, packaging, transfer of risk and ownership
7.1. The Products and/or Deliverables shall be transported at the Customer's risk, even if they are shipped carriage paid. It is the sole responsibility of the Customer to check the condition of the delivery and the quantity delivered and to inform the Supplier as soon as possible in case of non-conformity.
7.2. Notwithstanding any mandatory or public policy provisions to the contrary, the Supplier shall invoice the Customer for the cost of packaging and transport and packaging shall not be taken back, unless otherwise agreed.
7.3. The Products and/or Goods shall remain the property of the Supplier until the price has been paid in full. Supplier.
8.1. All Intellectual Property Rights of the Supplier which are communicated by the Supplier to the Customer in the context of a sale of Products, supply of Products and/or provision of Services with or without supply of Products, as well as any corrections thereto, shall remain the exclusive property of the Supplier. Any reproduction or use thereof without the prior written consent of the Supplier is expressly prohibited and may give rise to a claim for damages from the Supplier, as well as the application of any other sanction at the discretion of the Supplier.
8.2. The Agreements are not intended to :
9.1. Notwithstanding any mandatory statutory or public policy provisions to the contrary, if the Products, Services and/or Deliverables are manufactured in part by a manufacturer other than the Supplier, the Supplier shall assign to the Customer all transferable warranties, indemnities and remedies in connection with those parts of the Products, Services and/or Deliverables supplied to it by the manufacturer, including any warranty or indemnity for infringement of third party intellectual property.
9.2 Any warranty given in the General Terms and Conditions is valid only if (i) the Product and/or Performance is used and maintained in accordance with the Supplier's recommendations, (ii) the Product and/or Performance has not been modified by anyone other than the Supplier or a person designated by the Supplier and (iii) the Product and/or Performance is used in a reasonable manner. Defects caused by unreasonable use by the Customer, as well as damage caused by third parties or resulting from an accident or other extraneous cause, are excluded from the warranty. The warranty also does not cover the replacement of consumable Products or consumable Supplies or normal wear and tear.
9.3. Without prejudice to mandatory legal provisions or provisions of public order to the contrary, the warranties provided for in articles 9.1, 9.2, 17, 19 and 20 of the General Terms and Conditions are the only warranties offered by the Supplier and the remedies provided are also the only remedies available to Customer. The Supplier makes no other warranties, express or implied, with respect to the Products, Services and Deliverables provided under the Agreement, including, but not limited to, warranties of merchantability, fitness for a particular purpose or integrity of third party intellectual property rights.
10.1. The limitations and exclusions of liability agreed upon below shall not apply (i) in the case of personal injury or death of any person resulting from the negligence or fault of the Supplier or its agents, (ii) in the case of fraud and wilful misconduct or (iii) to the extent that these exclusions and limitations of liability are prohibited by mandatory legal provisions (in particular, the Law of February 25, 1991 on Liability for Defective Products).
10.2. In no event shall Supplier be liable for any indirect, incidental, punitive, incidental or consequential damages, such as, but not limited to, loss of data, damage to data, loss of profit or revenue, loss of sales, business interruption costs, removal and/or reinstallation costs, restocking costs, reputational damage or loss of customers, even if such damages were reasonably foreseeable.
10.3 Furthermore, Supplier shall not be liable in any way if its Products have not been used in accordance with their agreed or normal purpose.
10.4. The Supplier's liability to the Customer shall be limited to the equivalent of 100% (one hundred percent) of the amounts paid by the Customer to the Supplier under the Agreement, regardless of the nature of the claim, whether it is a contractual claim, tort or anything else.
10.5. The exclusions of the Supplier's liability referred to in the preceding paragraphs shall also apply to the liability of its staff, employees, servants, consultants, representatives, substitutes, suppliers and deliverers.
10.6. Customer shall indemnify, defend and hold harmless Supplier from and against all claims, demands, causes of action, suits, losses, liabilities, judgments, damages and expenses, including without limitation reasonable attorneys' fees and costs, arising out of or in connection with :
11. Termination of contract
11.1. Unless the parties agree otherwise in writing, the Master Agreement shall enter into force on the date it is signed by both parties and shall remain in force for twelve (12) months. The Master Agreement may be tacitly renewed for further successive periods of twelve (12) months, unless one party notifies the other by registered letter at least three (3) months before the end of the term. Such termination shall not affect any current Agreements.
11.2. Notwithstanding any provision in the General Conditions to the contrary, any Contract may be terminated with just cause, without compensation and without notice of default by a Party in the event that the other Party :
11.3. In the event of termination under this Section :
12. Return of hardware
12.1. The return of Products and/or Products to the Supplier for expertise or repair, whether under warranty or not, shall be at Customer's expense, including the cost of packaging, transportation and insurance.
12.2. The Supplier may refuse to accept such Products and/or Deliverables in case of non-compliance with the safety data concerning the substances in the Customer's installations which have been in contact with the returned Products and/or Deliverables.
13.1. Certain Products and/or Products and related technology and materials sold by the Supplier may be subject to the export laws, regulations and ordinances of the United States, the European Union and/or other countries ("Export Laws"). Customer agrees to comply with such Export Laws and not to transfer, sell, export, re-export or import the Products and/or Products and related documentation without first obtaining the required license, permit or authorization. Customer agrees not to export or re-export the Products and/or Products and related technology and materials to countries or entities where such practices are prohibited, including countries or entities subject to sanctions or embargoes administered by the United Nations, the European Union or the U.S. Departments of Treasury, Commerce or State.
13.2. Customer agrees not to use the Products and/or Products and related technology and materials in connection with military applications, nuclear, biological or chemical weapons or missiles capable of delivering such weapons, or in connection with the development of weapons of mass destruction.
13.3. The Parties undertake to cooperate in providing all documents and information necessary for the export of the Products and/or Services. In the event of delays in connection with obtaining the documents and information necessary for the export of the Goods and/or Services, the delivery and performance deadlines shall be extended by the same period.
14. Force Majeure
14.1 Neither party shall be liable for failure to perform its obligations under the Contract or delay in delivery/performance due to causes beyond its reasonable control. These include, but are not limited to, acts of God, acts or omissions of a party (of the other party), business interruptions, technological disasters, epidemics, shortages of materials, strikes, blockades, traffic congestion, government intervention, criminal acts, exceeding of delivery deadlines or interruption of delivery by its suppliers and inability to obtain labour or raw materials through normal channels.
14.2. If the delivery of the Product or the provision of the Service is so delayed for more than one month, either Party shall be entitled, without the other Party being liable to pay any compensation, to terminate the Contract in writing to the extent of the quantities affected by the interruption in the delivery of the Products or the provision of the Services.
15.1. Each Party agrees to (i) keep the Confidential Information of the other Party strictly confidential, i.e. treat such Confidential Information in the same manner as its own Confidential Information, and to maintain at least a reasonable degree of protection with respect to such Confidential Information; (ii) not communicate or disclose the Confidential Information of the other Party except to its directors, officers, employees, subcontractors, agents or consultants who need such Confidential Information to conduct business with the Parties or to perform the Agreement; (iii) notify the party to whom the Confidential Information is disclosed of its obligation of strict confidentiality under the Agreement; and (iv) not use or permit the use of the other party's Confidential Information for any purpose other than as provided in the Agreement
16.1 All disputes arising from the contractual relationship between the Supplier and the Customer shall be subject to the exclusive jurisdiction of the competent courts of the judicial district of Eupen. Except for the mandatory application of a mandatory law stating otherwise, in case of a dispute the Supplier also has the right to submit the dispute to the judge of the jurisdiction where the Customer's registered office or residence is located.
16.2. Without prejudice to applicable foreign law of public order or mandatory law, Belgian law shall apply to the contractual relationship between the Supplier and the Customer, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention of 11 April 1980).
16.3. If one or more provisions of the Agreement are declared wholly or partially invalid, illegal or unenforceable, the validity of the remaining provisions of the Agreement shall not be affected thereby. In such case, the parties undertake to replace such partially or wholly invalid, illegal or unenforceable provision with retroactive effect by a valid, legal and enforceable provision which most closely approximates the commercial and financial purpose of the invalid, illegal or unenforceable provision.
16.4 The Customer authorizes the Supplier to subcontract all or part of the Services and/or sale of Products entrusted to it. The Customer shall refrain from doing business directly with the Supplier's subcontractor for a period of one (1) year after the end of the contractual relationship between the Customer and the Supplier.
16.5. Unless otherwise agreed in writing by the Parties, the Customer shall communicate its complaints to the Supplier by registered letter with acknowledgement of receipt within fifteen (15) days of receipt of the Products, Services and/or Goods. After this period, the Products, Services and/or Products shall be deemed to be definitively accepted and the Customer shall no longer be able to invoke any visible defects, faults and/or non-conformities.
16.6. The Agreement constitutes the entire agreement between the Parties and supersedes all previous agreements relating to the subject matter of the Agreement.
16.7. All obligations under the Contract which by their nature continue after the end of the Contract shall continue after the end of the Contract, including all pecuniary obligations of either Party to the other under the Contract.
16.8. The failure of the Supplier to object to any document, notice or action of Customer shall not constitute a waiver of any provision of the Contract.
16.9. The Parties are independent and agree that the Contract does not create any joint venture, agency or partnership between them. Nothing in the Contract shall be construed as creating a relationship whereby one Party acts on behalf of the other or makes any warranties, except as otherwise expressly provided in the Contract.
17.1. Without prejudice to Article 9 of the General Conditions and otherwise mandatory statutory or public policy provisions, the Supplier warrants for a period of one (1) year that the Deliverables at the time of delivery (i) materially conform to the Specifications, and (ii) comply with the laws applicable in the Supplier's field of business.
17.2. If the Customer invokes this warranty, he shall be obliged to hand over the defective Product to the Supplier upon the Supplier's first request. The Supplier shall bear the costs of transporting the defective Product, provided that the defectiveness of the Product is confirmed.
17.3. In case of breach of this warranty the Customer shall only be entitled to (i) replacement of the defective Product by a new Product delivered free of charge to the Customer, or (ii) reimbursement of the price paid by the Customer for the defective Product, at the discretion of the Supplier.
18. Supplier's obligations
18.1. When the Supplier performs Services for the Customer, the Supplier has a resource commitment in the performance of its Services, unless this is expressly waived in the Agreement.
19.1. Without prejudice to Article 9 of the General Terms and Conditions and otherwise mandatory statutory or public policy provisions, the Supplier warrants for a period of three (3) months that the Services will be performed (i) in a professional manner and in accordance with the rules of the trade, (ii) materially in accordance with the Specifications, and (iii) in accordance with the laws applicable to the Supplier's trade.
19.2. Customer's sole remedies for breach of this warranty shall be, at Supplier's option, (i) reperformance of the Services free of charge, or (ii) refund of the price paid by Customer for the non-conforming Services.
20.1. Without prejudice to Clause 9 of the General Conditions and any mandatory statutory or public policy provisions to the contrary, the Supplier warrants for a period of (3) months that the Deliverables, at the time of the provisional acceptance of the Product in accordance with Clause 21 of the General Conditions, (i) materially conform to the Specifications, and (ii) comply with the laws applicable to the Supplier's field of business.
20.2. If Customer invokes this warranty, Customer is obliged to send the defective Performance to Supplier at Supplier's first request. The Supplier shall bear the costs of transporting the defective Performance, provided that the defectiveness of the Performance is confirmed.
20.3 Customer's only remedies for breach of this warranty shall be, at Supplier's option, (i) replacement of the defective Product with a new Product which shall be delivered to Customer free of charge, (ii) repair of the defective Product at Supplier's expense or (iii) refund of the price paid by Customer for the defective Product.
21.1 If the Supplier is of the opinion that the Performance meets all the criteria set forth in the Specifications, the Supplier shall notify the Customer as soon as possible. The Parties shall then, within a reasonable time, carry out the provisional acceptance test.
21.2 If the provisional acceptance test is successfully completed, the parties shall promptly sign a provisional acceptance protocol. If the provisional acceptance test is not successful, the Supplier shall have the right to make the necessary changes to the Performance within a reasonable period of time at its own expense. The Supplier shall notify the Customer as soon as possible of the changes made. The parties shall then conduct a new preliminary acceptance test within a reasonable period of time. If the new provisional acceptance test is successful, the parties shall immediately sign a provisional acceptance protocol.
21.3 The parties shall sign a final acceptance protocol after a period of three (3) months has elapsed since the provisional acceptance, being the end of the warranty period.
22.1. If the Services are performed by the Supplier's personnel (in the broadest sense of the word) on the Customer's premises or on the premises of the end customer, the Customer undertakes :
22.2. If personnel of the Customer (in the broadest sense of the word) are on the premises of the Supplier during the performance of the Services, the Supplier undertakes to :
23.1 Customer may notify Supplier of the planning, development and delivery of (i) Standard Software, (ii) Engineering Software, (iii) Executive Software and/or (iv) Embedded Software.
23.2 The Software may contain components of open source software. The Supplier shall inform the Customer of this during the planning phase or, if later, during the development phase.
23.3. The Software may contain software components from third parties. The Supplier shall inform the Customer of this during the planning phase or, if later, during the development phase.
23.4. The Software may contain software components of the Customer. In that case, notwithstanding anything to the contrary in the General Terms and Conditions, all claims for defects and liability of Customer against Supplier in respect of such software components of Customer are expressly excluded.
24.1. During the planning phase, the Customer shall use the services of the Supplier to make the necessary preparations for the data processing and the development of the software. The purpose of the planning service provided by the Supplier is to agree all essential requirements in a formal data sheet or other formal or informal form (referred to as "Scope of Work") based on the facts and requirements identified during the planning phase in close cooperation with the Customer. The Scope of Work shall form the basis for the further development of the Software.
24.2 During the planning phase, Customer shall provide Supplier with the necessary information about the current state of affairs in the intended application areas, about corporate policies and procedural objectives and priorities, and about all other specifications in Customer's sphere for the purpose of drafting the Scope of Work. To this end, a direct and close coordination between the Services provided by the Supplier and the wishes, proposals and instructions of the Customer takes place throughout the planning phase. The Customer shall therefore be fully involved in the planning phase and shall have the opportunity to influence the Scope of Work as he sees fit.
24.3. If, during the planning phase, the Supplier determines that the planned configuration must be changed on the basis of facts, requirements and software features that have been established in the meantime, it shall inform the Customer of this within a reasonable period of time and make alternative proposals. The Customer shall immediately decide on all changes resulting from such instructions which affect the preparation and content of the scope of work.
25.1 The Supplier shall substantially develop the Software on the basis of the Scope of Work.
25.2 During the development phase, the Supplier shall carry out additional programming, in particular coding, testing and integration. At regular and reasonable intervals, the Supplier shall inform the Customer of the status of the programming work and compliance with the Software requirements. Delays and requests for changes shall be communicated to the Customer within a reasonable period of time.
25.3. Also during the development phase, the Customer shall provide the Supplier within a reasonable period of time with all information the Supplier requires to fulfill its obligations under the Agreement.
26.1. All developed Software is subject to acceptance.
26.2 The Supplier shall notify the Customer in writing of the completion and availability for acceptance of its work.
26.3. The conditions, procedure and duration of acceptance may be defined in the Scope of Works. In addition, partial acceptance of quantifiable partial Services may be agreed in the Scope of Works.
26.4. Acceptances and partial acceptances must always be in writing. After completion of the acceptance, the Client shall confirm the acceptance by co-signing the acceptance protocol. The development of the Software shall be deemed to be completed fourteen (14) days after written notification of readiness for acceptance by the Supplier, if the acceptance process is delayed for reasons for which the Supplier is not responsible.
26.5. During the period in which the Supplier removes errors, the acceptance procedure shall be deemed to be suspended. The Supplier shall correct the errors within a reasonable time and free of charge (referred to as "Correction") and notify Customer of the completion of the Correction. Thereafter, the acceptance procedure shall be repeated. Incidental discrepancies shall not be grounds for refusal of acceptance.
26.6. If the Correction is not completed despite the fact that Customer has sent the Supplier a written reminder granting a reasonable and sufficient period of time and warning the Supplier that failure to correct may result in termination of the Services, Customer shall have the right to withdraw from the development phase.
26.7. During the planning and development phase, the parties may agree on a partial acceptance of quantifiable partial products to be accepted separately in accordance with Article 26, in order to ensure the proper continuation of the development phase. In that case, Articles 26.5 and 26.6 shall apply only to the partial Services not yet accepted.
27. Project Management
27.1. Unless otherwise expressly agreed in writing by the Parties, the Parties shall designate Project Leaders who shall be authorized to make binding statements on all matters relating to the Project during the planning and development phase. The Parties shall also agree on substitute rules for these Project Leaders. The Project Leaders shall continuously monitor and coordinate the work and inform each other of progress at regular meetings. The Parties shall make the above agreements in writing.
27.2. 27.2. The Parties shall provide sufficient and qualified personnel for the mutual cooperation. The parties are aware that successful cooperation in the planning and development phase requires the active participation of the client.
28.1. The fee to which the Supplier is entitled shall be determined in the Agreement. All prices and/or rates are exclusive of VAT at the statutory rate applicable on the date of service.
28.2. Unless the parties have expressly agreed otherwise in writing, all services performed by the Supplier shall be compensated on a time and money basis according to the "JUMO service rates" applicable at the time of the service. These shall be attached to the contract.
28.3. In the event of accidental loss of Services or parts of Services before acceptance, the Supplier shall be entitled to compensation corresponding to the Services previously provided.
29.1. If, during the development phase, the Customer is of the opinion that technical modifications are useful or necessary, the Customer shall inform the Supplier immediately. Where appropriate, the Parties shall discuss the consequences of such modifications for the content and execution of the Agreement. In the absence of an agreement between the Parties on the change and its consequences, the original agreement shall remain in force.
29.2. If the terms, content or scope of the work are changed by mutual agreement after the conclusion of the contract, either party may demand a mutual adjustment of the fee and schedule. The criteria used to evaluate the Supplier's performance at the time the Contract was concluded shall apply as appropriate. The Customer shall never be entitled to unilaterally amend the Contract.
30.1. The Supplier warrants that, at the time of receipt, the Software contains no material defects that would invalidate its functionality.
30.2. The Customer is aware that, according to the state of the art, it is not possible to develop Software that is completely free of errors.
30.3. Without prejudice to Clause 30.12, the Supplier shall repair reproducible errors in the Software for which the Supplier is responsible in accordance with Clauses 30.5 and 30.6.
30.4. The Customer shall describe material defects as accurately as possible.
30.5. Correction shall be made at the option of the Supplier by (i) troubleshooting, (ii) licensing a new version of the Software or (iii) identifying ways to avoid the impact of the error. A new version of the Software will be implemented by Customer unless it does not pose sufficient customization and conversion problems for Customer.
30.6. The Correction shall take place at the option of the Supplier at the Customer's premises or at the Supplier's premises. If the Supplier chooses to rectify the defect at Customer's premises, Customer shall provide free of charge a suitable environment and suitable operating personnel to the extent necessary to carry out the Correction within a reasonable time. Customer shall provide the Supplier with the documents and information available to it to carry out the Correction.
30.7. Customer shall immediately notify the Supplier in writing and in detail of any material defects.
30.8. In respect of Software supplied for testing, demonstration or validation purposes, the Supplier shall only be liable if it has fraudulently concealed the defect, in the case of injury to life, body or health and in the case of wilful neglect of duty or gross negligence on the part of the Supplier.
30.9. Liability for material defects shall not include:
30.10. In the case of embedded software, claims for defects shall only exist if they can be reproduced on the reference or target hardware specified in the Agreement. If a defect specified by the Customer is not reproducible, is due to improper use by the Customer or is excluded from liability for any other reason, the Supplier shall be entitled to charge the Customer an appropriate fee for inspection and reimbursement of the resulting transportation, travel and accommodation costs.
30.11. If the information carriers delivered by the Supplier are defective, Customer may only request the Supplier to replace the defective information carriers with error-free versions.
30.12. Correction claims shall lapse six (6) months after receipt. The same shall apply to withdrawal and reduction. This limitation period shall not apply if the applicable law prescribes longer periods in the case of intentional or fraudulent concealment of the defect. This shall not affect the legal provisions concerning the suspension, interruption or expiry of the limitation period.
30.13. Any claim by the Customer to reimbursement of the costs necessary for the Correction, in particular transport, travel, labour and material costs, is excluded insofar as these costs are increased if the Software is subsequently transferred to a location other than the Customer's place of business, unless the transfer is inherent in its agreed use.
30.14. Without prejudice to Article 31, warranty claims of Customer and its subcontractors against Supplier other than those agreed upon under this Article 30 are expressly excluded.
31.1. To the extent that Intellectual Property Rights arise during the planning or development phase, they remain entirely with the Supplier.
31.2. Unless otherwise expressly agreed in writing between the Parties, the Supplier shall be obliged to provide its Services free of intellectual property rights and copyrights of third parties (the so-called "Property Rights") only in the country of the place of delivery. If a third party asserts justified claims against the Customer for infringement of property rights by the Software created by the Supplier and used in accordance with the Agreement, the Supplier shall be obliged vis-à-vis the Customer to take one of the following actions within the period specified in Article 30.12 :
will obtain a license for the Software in question,
modifying it in such a way that the property rights are no longer violated, or
will replace the Software in question.
31.3. The Customer's claims are excluded if it is responsible for the infringement of the Property Rights.
31.4. Claims of Customer are further excluded if the infringement of Property Rights is caused as a result of specific instructions of Customer, unforeseen use of the Software or modification of the Software by Customer or use of the Software with products or software of Customer not supplied by Supplier.
32.1. To the extent that the Software contains third-party software components, the intellectual property rights to such third-party software components shall remain exclusively with the manufacturer of the third-party software.
32.2. Insofar as the Software contains open source software components, the intellectual property rights relating to such open source software components shall be treated in accordance with the licensing conditions of such open source software, which the Supplier shall transfer to the Customer.
33.1. These License Terms set forth the terms and conditions for licensing (i) standard software, (ii) engineering software, (iii) executive software and/or (iv) embedded software (collectively, "Software").
33.2. The Software may contain open source software components. Supplier shall inform Customer of this.
33.3. The Software may contain software components from third parties. The supplier shall inform the commissioning party hereof.
33.4. The Software may contain components of Customer's software. In that case, notwithstanding anything to the contrary in the General Terms and Conditions, any claim for defects and liability of Customer against Supplier with respect to such components of Customer's software shall be excluded.
33.5. The Parties agree that standard software shall mean software created wholly or partly by Supplier and capable of running on various computer hardware.
33.6. The Parties agree that "engineering software" shall mean software for engineering purposes, e.g. configuration, programming, parameterization, testing or launching, created in whole or in part by the Supplier.
33.7. The Parties agree that executive software shall mean software for installations and operating machines, for example operating systems, basic systems, system extensions or computer drivers, created in whole or in part by the Supplier.
33.8. The Parties agree that embedded software shall mean software created in whole or in part by the Supplier that can only be used on specific computer hardware.
33.9. The Parties agree that "open source software" shall mean software whose source code is in the public domain and which can be viewed, modified and used by third parties in accordance with the terms of the open source software license.
33.10. The Parties agree that third party software shall mean software created by a third party manufacturer that the Supplier rents, licenses or sublicenses to the Customer.
33.11. The Parties agree that demo software shall mean a trial version of software provided by Supplier to Customer free of charge, but only for presentation or test purposes, for temporary use and limited application.
34. Intellectual property rights and rights of use
34.1. Tenzij Partijen uitdrukkelijk schriftelijk anders zijn overeengekomen, blijven de Intellectuele Eigendomsrechten van de Programmatuur volledig eigendom van de Leverancier, onverminderd het bepaalde in de artikelen 31 en 32.
34.2. Tenzij de partijen uitdrukkelijk en schriftelijk anders zijn overeengekomen en onverminderd de artikelen 31 en 32, kent de Leverancier de cliënt specifieke contractuele voorwaarden toe :
35.1. The Supplier grants the Customer the simple and non-exclusive right to use the Software with the devices potentially listed in the Agreement. All Software provided to the Customer may only be used on one device at a time.
35.2. If there are multiple workstations on a device on which the Software can be used independently, the single license covers only one workstation.
35.3. The Customer is entitled to make reproductions of the Software to be used for security purposes only (backup copies). The Customer may not make copies of the documentation provided. Furthermore, the Customer may only reproduce the Software under a multiple or unlimited license.
35.4. The Customer is not permitted to modify, reverse engineer or translate the Software, extract parts from it, connect it to other programs or derive Customer software from it.
35.5. The Customer is not entitled to remove alphanumeric or other codes from the data carriers and must transfer them unchanged to the backup copies.
35.6. The Customer undertakes (i) to store the Software, including the documentation, carefully in order to prevent misuse, and (ii) not to disclose the contents of the Software to third parties and to oblige employees who have access to the Software to comply with the existing confidentiality obligations and use restrictions.
35.7. Supplier grants Customer the revocable right to re-transfer the usage rights transferred to Customer to third parties. If Customer has purchased the Software together with a device, Customer is only entitled to transfer the Software together with this device to third parties. The Customer shall enter into a written agreement with the third party pursuant to which the third party shall perform its obligations under this Agreement. If Customer licenses the Software to a third party, Customer shall be responsible for compliance with all export requirements and shall indemnify the Supplier in this regard.
36.1. In order to use the Software simultaneously on multiple devices or workstations, Customer must have a multiple license. To obtain a multiple license, the Supplier must provide a single license in addition to written confirmation of the number of authorized reproductions Customer may make from the Software licensed under the single license.
36.2. Under a multiple license, the Customer is granted the single, non-exclusive, non-transferable right to make the number of reproductions of the Software specified in the written confirmation. The Customer is also authorized to use the reproductions made in accordance with the provisions on individual licenses and to license them to third parties for use.
36.3. The use of the Software on multiple devices is the use of the Software within the same network on multiple workstations on which no copies of the Software are created (network license). The rules for multiple licenses apply accordingly to network licenses. The number of authorized workstations corresponds to the number of authorized reproductions.
36.4. Customer shall comply with the reproduction instructions sent to it by the Supplier together with the multiple license. Customer shall keep a record of the location of all copies and provide the same to the Supplier upon request. Customer shall transfer all alphanumeric or other codes from the data carriers unaltered to all copies.
37.1. In order to use the Software on an unlimited number of devices or workstations simultaneously, Customer must have an unlimited license. To obtain an unlimited license, the Supplier must provide a single license in addition to a written confirmation that it is granting an unlimited license.
37.2. Under an unlimited license, the Customer is granted the simple, non-exclusive and non-transferable right to make an unlimited number of reproductions of the Software, without limitation in time. The Customer is also authorized to use the reproductions made in accordance with the rules on individual licenses and to license them to third parties for use.
37.3. Customer shall comply with the reproduction instructions sent to it by the Supplier in conjunction with the unrestricted license. Customer shall keep a record of the location of all reproductions and shall provide these to the Supplier upon request. Customer shall transmit all alphanumeric or other codes of the data carriers unaltered on all copies.
38. Demo software
38.1. The Demo Software is granted for temporary and limited use in accordance with the terms of the Demo Software License. Outside of this temporary and limited use, the use of the demo software is not permitted.
38.2. To the extent permitted by law, any warranty for the demo software is excluded, except in case of fraudulent concealment of a defect, injury to life, body and health and in case of intentional breach of duty or gross negligence by the Supplier.
39.1. The Customer may reproduce, use or license its own programs or data (hereinafter "Customer Applications") created using the technical software to third parties without a license fee.
39.2. If, during the intended use of the Engineering Software agreed between the parties, parts of the Engineering Software are incorporated into the Customer Applications, the right to reproduce without license fee shall also apply to these parts of the Engineering Software. The Customer shall not be entitled to extract parts of the Engineering Software in any other way.
39.3. Insofar as not otherwise provided for in the General Terms and Conditions, all liability or warranty claims of Customer against Supplier are expressly excluded.
40.1. If Customer integrates Customer Applications (including by means of engineering software) into the Executive Software, Customer must acquire a license in accordance with the agreed purpose of use and the valid Supplier catalog prior to any installation or other reproduction of Customer Applications, which contain the Executive Software or parts thereof, or which Customer connects to a copy of its Customer Applications.
40.2. If Customer licenses the said Customer Applications to third parties, the following shall apply to the executing Software belonging thereto: Customer shall entirely cease using the Software, remove all copies installed on his equipment and entities, and erase all copies present on other data carriers or return them to Supplier at Supplier's request, unless Customer is bound by law to keep them for a longer period. Any use of such stored copies is prohibited.
40.3. This Article does not confer any right to extract parts of the executing software.
40.4. Insofar as the General Terms and Conditions do not provide otherwise, all liability or warranty claims of Customer against Supplier are expressly excluded.
41.1 Insofar as the General Terms and Conditions do not provide otherwise, this Article 41 shall apply to all cases of licensing of the open source software to the Customer or in the case that the Software contains components of the open source software. In the latter case, Article 41 shall apply only to the part of the open source software components.
41.2 With regard to the open source software and software derived from the open source software, the license conditions applicable to the open source software shall always prevail. The Supplier shall notify the Customer of the use of the open source software and provide the Customer with access to the relevant licensing conditions.
41.3. The Customer shall indemnify the Supplier against all claims and costs incurred by the Supplier as a result of the use of the open source software, unless prohibited by the licensing conditions.
41.4. Customer may only use, distribute, reproduce and modify the open source software in accordance with the terms of the open source software license. If the license terms of the open source software do not provide otherwise, a direct contract and license relationship shall be established between (i) the Customer and/or the end customer on the one hand, and (ii) the original licensor on the other hand.
41.5 Without the express prior consent of Supplier, Customer is strictly prohibited from integrating the Software created by Supplier, or third party software that is not open source software, with open source software or software derived from open source software.
41.6. Except insofar as otherwise provided in the General Terms and Conditions, but notwithstanding any other provisions in the license conditions of the open source software, any claim regarding a defect or liability of the Customer against the Supplier with respect to the open source software or software derived from the open source software is expressly excluded.
42.1. Unless otherwise provided in the General Conditions, this Article 42 shall apply to all cases of licensing of the Third Party Software.
42.2 With respect to the Third Party Software and software derived from the Third Party Software, the license terms applicable to the Third Party Software shall always prevail.
42.3. The Supplier shall state the existence and licensing conditions of the Third Party Software in the documentation and make the licensing conditions of the Third Party Software available.
42.4. The Supplier hereby assigns to the Customer all warranties, indemnifications and liability claims that may be transferred to the Supplier by the manufacturer of the Third Party Software.
42.5. Insofar as not otherwise provided in the General Terms and Conditions and without prejudice to Article 42.4, any claim concerning a defect or liability of the Customer vis-à-vis the Supplier with regard to third-party software or software derived from it shall be expressly excluded.
43. Remuneration, duration, termination
43.1. The fee, duration and type of license shall be agreed in the contract.
43.2. Unless otherwise agreed between the parties, Customer shall pay the fee to Supplier in advance.
43.3. Unless otherwise agreed between the parties, the single licence referred to in Article 35, the multiple licence referred to in Article 36 and the unlimited licence referred to in Article 37 shall be granted for an indefinite period.
44. Support and maintenance of the software
44.1. All support in connection with the Software, whether preventive or corrective maintenance, or any right to patches, updates or upgrades, will be separately regulated in a software support and maintenance agreement.
44.2. Insofar as the parties have not concluded a software support and maintenance agreement, Supplier shall be compensated by Customer for its Services (consulting, development of software, etc.) on a time basis.
45. Liability for defects
45.1. The Customer is familiar with the licensed Software.
45.2. Liability for defects is governed by Article 10 of the General Terms and Conditions.
46. Software audit
46.1. Supplier shall be entitled to audit Customer's use of the Software ("Audit"), provided that Supplier gives thirty (30) days written notice of the Audit.
46.2. Such Audits shall take place during Customer's normal working hours, not more than once a year and for a maximum of two working days. The Customer shall have the right to refuse the auditors on reasonable grounds. All industrial and commercial secrets of the Customer shall not be disclosed. All personal data will be stored and secured in accordance with applicable law. The results of the audit shall be kept confidential and the Supplier shall minimize the interference of the audit with the Customer's business activities.
46.3. The client undertakes to assist the supplier during the audit, to support the supplier in a reasonable manner and to provide the supplier with sufficient access to information.
46.4. In addition, the Client agrees to pay all outstanding fees retroactively within thirty (30) days of written request.
46.5. In case of non-payment, the Supplier shall be entitled to terminate the Customer's licenses and the relevant Agreement for good cause to the detriment of the Customer.
46.6. The Customer agrees that the Supplier shall not be liable for any costs incurred by the Customer for assistance during the Audit.