General Terms & Conditions of Greenbone AG
As of: 9 November 2011
1. Scope of application
These General Terms & Conditions shall apply to all offers, orders, deliveries and services provided by Greenbone AG (hereinafter referred to as Greenbone) under exclusion of any deviating terms and conditions of the contractual partner, unless the validity is confirmed in writing by Greenbone. The General Terms & Conditions shall be applicable only vis-à-vis entrepreneurs within the meaning of § 310 (1) of the German Civil Code (BGB).
2. Conclusion of contract
All offers made by Greenbone are subject to change and are non-binding, unless expressly agreed otherwise in writing. A contract shall only become effective upon the express agreement to execute the order. Any subsidiary agreements, changes, amendments, etc. shall require written confirmation by Greenbone.
3. Services, performance and time limit for performance
The agreements entered into and these General Terms & Conditions alone shall be applicable to the content and scope of the contractual obligation. The services rendered may deviate from the agreements entered into, provided that they meet or adhere to the defined requirements. Due dates shall be binding only if confirmed in writing. Greenbone shall assume no liability for delays in performance if caused by circumstances that impede the completion of services on schedule. The same shall apply in cases of force majeure, including, amongst other things, the breakdown of communications networks, servers, strike, power cuts, and so on. No liability shall be assumed either for a delay in performance if the customer fails to fulfil his duty to cooperate. If the customer defaults in accepting performance or if he culpably breaches any other duties to cooperate, Greenbone is entitled to request replacement of the losses it sustains, including any possible additional expenditure. The right to additional claims remains unaffected. Services shall be rendered within the framework of the technical possibilities at the time of concluding the contract.
To the extent agreed, Greenbone shall provide user support during normal business hours via e-mail within the scope of customer queries, which shall also be submitted exclusively by e-mail. The response time shall be one day. The response time for analysing and eliminating errors reported by customers shall be three working days. The rules on public holidays at the registered office of Greenbone shall apply. Greenbone shall provide customers with system updates via its website.
All services shall be based on the knowledge and experience of Greenbone and do not claim to be exclusive. Services shall be rendered on the basis of the information provided by the customer using the expert knowledge of Greenbone, and shall be based on the subjective professional judgement of the issues. The customer shall bear the risk of the objective correctness of consultancy services.
4. Cooperation of the customer
The customer shall assist in the rendering of services. He shall provide Greenbone with all the information and data required to execute the order in good time.
The customer shall take measures in the event that subjects of the contract do not work correctly in whole or in part, e.g. continuous data backup, regular verification of results, error diagnoses, and so on.
5. Payment and remuneration
Payments agreed upon shall be payable without deduction by the specified dates. Statutory regulations shall apply to default in payment and consequences of default. In addition, Greenbone shall be entitled to charge an administration fee of € 10.00 for each reminder. The enforcement of further damages shall remain unaffected. The customer shall only be entitled to retain payments or to set them off against any possible counterclaims insofar as these have been expressly recognised by Greenbone or declared final and conclusive.
6. Retention of title
Greenbone reserves the right to ownership of the delivered products until the payment of all claims arising from the business relationship between the parties.
7. Obligation to examine and requirement to give notice of defects
The customer is obliged to have all Greenbone products promptly examined by a qualified member of staff in accordance with the provisions pursuant to commercial law (§§ 377, 378 of the German Commercial Code (HGB)) and to give notice of defects in writing with an exact description. This obligation shall be governed by the customer’s possibilities of discovering and specifying errors.
8. Acceptance of performance
If a service provided by Greenbone is to be legally qualified as a work performance and the performance must therefore be accepted, this shall take place immediately after Greenbone has declared its completion and handed over the relevant documents. If the customer fails to accept performance for any other reason apart from due to a considerable defect, then the service provided by Greenbone shall be deemed to have been accepted if the customer does not accept the service within an appropriate time limit set by Greenbone.
9. Warranty and liability
Unless otherwise agreed upon in writing, warranty claims against Greenbone shall become statute-barred twelve months after the provision of the service or delivery (e.g. delivery of the software or hardware). In the case of a warranty claim, Greenbone shall choose whether to correct the defect or to provide a replacement delivery. If Greenbone fails to eliminate deficiencies within an appropriate period of grace, set in writing, or to provide a replacement, the customer is entitled to demand either a withdrawal or a reduction of the counter-performance. The warranty shall cease to apply if the contract product is improperly installed, used or changed by the customer or a third party. This provision shall not apply if the customer proves that these circumstances are not the cause of the notified defect. Greenbone shall be liable for damage based upon intent or gross negligence, including intent or gross negligence of the representatives or vicarious agents of Greenbone. In addition, it shall be liable only in the event of a culpable violation of a major contractual obligation. In this case, liability shall be limited to foreseeable damage that typically occurs and shall be limited to the order value amount. Liability arising from culpable injury to a person’s life, body or health shall remain unaffected. Any further liability shall be excluded.
10. Data protection
The customer is hereby informed, in accordance with § 33 (1) of the Federal Data Protection Act, that Greenbone shall process his address electronically in a machine-readable form and for assignments arising from the contract. Greenbone guarantees that all persons, including vicarious agents, have knowledge of and shall comply with the relevant data protection regulations as amended from time to time.
11. Other provisions
If any provision of the General Terms & Conditions of Greenbone shall be or become invalid, either wholly or in part, then the validity of the remaining provisions shall not be affected. The invalid provision shall be substituted by a new provision that comes as close as possible in a legally effective way to the commercial purpose of the invalid provision. Notifications by fax or e-mail shall suffice as written form. Encryption or signatures shall only be carried out by express agreement. Any assignment or transfer of rights and obligations arising from contracts entered into with Greenbone require the prior written consent of Greenbone. Any amendments to the General Terms & Conditions shall be communicated two weeks prior to their entry into force. If they are not objected to within one week, they are deemed to have been accepted. The legal relationships between Greenbone and the customer are subject exclusively to the laws of the Federal Republic of Germany. Osnabrück shall be the jurisdictional venue for all legal disputes.