1 Validity of the conditions
1.1These terms of business are exclusively valid for BE.services offers, services, sales and deliveries. Conflicting or divergent terms and conditions to ours are only recognized if they are confirmed by us in writing as an addendum to our terms and conditions of business.
1.2. BE.services’ terms and conditions of business apply also if conflicting or divergent conditions to those of BE.services were provided and the delivery or service was processed without any reservation. Customer’s acknowledgements referencing the customer’s own terms and conditions are hereby rejected/will not be recognized or binding.
1.3. Our terms of business remain valid for all future purchases by the customer.
2 Object of agreement
BE.services’ scope of business comprises consulting and cooperation in the selection of hardware, the programming of specific software requirements and adaptations of software products, the development of customer specific software, the outsourcing of programming tasks and provision of contract training.
3 Scope of delivery / scope of services
3.1. The scope of delivery/services of the deliveries/services listed below in 3.2.-3.5. is determined according to the agreements between both parties. The relevant reference is our order confirmation. This is equally true in case of contradictions between the inquiry/order of the customer and our order confirmation. If the parties have no arrangement about the scope of delivery and/or service of the performed deliveries/services listed below in 3.2.-3.5., and, in particular without the existence of an order confirmation, the below regulation is valid with regard to the respective delivery and/or service:
3.2. Hardware consulting: Unless mutually agreed otherwise, hardware consulting is limited to the suitability of the hardware regarding its compatibility with the software provided or developed by BE.services as a contract service. The suitability of such software to fulfill legal, operational, safety and/or security conditions and requirements for the customer’s intended application are excluded from our hardware consulting services. In the context of BE.services’ hardware consulting services, the software’s conformance with these legal, operational, safety and/or security conditions and requirements are exclusively the customer’s responsibility.
3.3. Programming of customer specific requirements: BE.services is obliged to deliver only those specific development requirements documented in a written order confirmation.
3.4. Training: There are no implied training responsibilities. BE.services is only obliged to provide such training as is explicitly documented in the written order confirmation.
3.5. Maintenance: There are no implied maintenance responsibilities. BE.services is only obliged to provide such maintenance as is explicitly documented in the written order confirmation.
4 Quotations and contract completion
4.1. The offers are valid for 30 days after issuance.
4.2. At the end of the period of validity, BE.services is no longer bound to prices and delivery conditions offered in the original quotation.
4.3. The acceptance of an order occurs through an order confirmation in text form, by fax or by email. In case of missing relevant documentation at the beginning of the execution of the delivery and/or service, the contract becomes effective at the beginning of the delivery and/or service.
4.4. Information contained in catalogues, brochures, mailings, announcements, website, pictures etc. are non-binding to the delivery and/or service and/or the state of the delivery and/or service, unless these are expressly included in a contract concluded between the parties and/or in BE.services’ written order confirmation.
5 Change in the scope of delivery / scope of services
5.1. Any change in the scope of delivery and/or service requires the explicit approval of all contracting partner in written form.
5.2. If any change in the scope of delivery and/or service of the customer is determined by BE.services to require extensive examination, this additional examination requires a separate agreement and will be invoiced separately by BE.services.
5.3. The necessary contractual modifications resulting from such an examination and/or change are to be documented in written form. This documentation becomes an addendum to the original contract, even if apparently not directly connected with, or outside of, the scope of the original contract.
6 Surrender of goods / use of the Software
6.1. Whenever BE.services is mandated through an official order to deliver, develop or adapt software, BE.services will deliver the software in machine-readable format on a physical media or as a readily accessible download.
6.2. Should the software be delivered as object code, it is strictly forbidden to decompile or reverse-engineer the code without the written approval of BE.services.
7 Customer Cooperation
Unless otherwise mutually agreed in writing, for the timely and accurate fulfillment of its contractual obligations, BE.services requires and expects the following full customer cooperation:
- For the installation, development and adaptation of software, the customer must provide BE.services with relevant controller(s), evaluation board(s) or prototype system(s) with sufficient ancillary resources to test the environment(s) and application(s) into which software developed by BE.services is to be installed. A dedicated, qualified employee or consultant of the customer must be identified and made available to BE.services for development support. The controller(s), evaluation board(s), systems and/or system components made available to BE.services and on which the software is to run and/or on which the programming activity is to be executed must be received in 100% functional condition and capable of fully supporting the requisite development and executing the full scope of performance verification.
- All software, software tools, firmware and hardware determined as above to be necessary for the installation, development, adaptation and verification of software will be made available by the customer to BE.services without costs. Should any additional or replacement software, software tools, firmware and hardware be identified by BE.services, during the course of development, as necessary to the timely and accurate fulfillment of its contractual obligation the client will make these available to BE.services in the shortest reasonable time.
- When BE.services is to perform programming services, the customer will provide BE.services with all specification information BE.services determines necessary for the realization of the contracted programming services.
- For the realization of maintenance and/or adaptation services and/or programming activities, the customer will provide BE.services access to the physical location (i.e. specific room, controller, evaluation board and/or prototype system) given a minimum notice of 5 days if such direct access is strictly required for the execution of the maintenance and/or adaptation services and/or programming activities. Should the customer fail to fulfill the above listed customer cooperation assistance requests, BE.services is entitled to terminate the contract in good cause and the customer is obliged to compensate BE.services for all damages related to this early contract termination.
8.1. The prices documented in our order confirmation are authoritative. All prices are quoted ex works (EXW). Additional local legal VAT rates apply.
8.2. The list prices are valid, provided that no different agreement is met.
8.3. Programming of adaptations, development of individual software, commissioning services as well as direct customer training are charged on an hourly basis, unless mutually agreed otherwise. The list price per hour provided to the customer at the time of service agreement is valid and authoritative.
8.4. The prices of maintenance services are determined by the price list current at the time of agreement on the maintenance contract. BE.services is entitled, with reasonable discretion, to adapt these prices annually, on January 1st, following a minimum contract validity of 4 months. The customer can enter an objection within one month after the effective date of the price increase.
9.1. Our payment terms are 14 days net without deduction. Payments are due at payment deadline.
9.2. A restraint of payment or an offset due to possible existing counterclaims by the customer are excluded with the exception of indisputable or legally ascertained demands.
9.3. We reserve the right to put open deliveries of any order(s), on hold should the customer be on default of payment. We reserve the right to deliver future orders only under advance cash payment.
9.4. The work performed by hired-out staff (outsourced) is invoiced at the end of each month and payment is due latest on the 15th of the following month unless agreed otherwise in writing.
9.5. In case of still open invoices, incoming payments will always be applied to the oldest non-paid invoice until the balance is paid-off fully.
9.6. Should the customer be deemed in arrears on accounts payable, BE.services is entitled to demand immediate payment of the entire remaining accounts payable balance. Moreover, BE.services is entitled to withhold delivery of pending orders until the customer has paid-off the balance or has provided sufficient surety for the payment of all open deliveries.
9.7. Interests on accounts payable in arrears are determined according to relevant legal regulations.
10 Delivery / performance time, delay and failure to perform
10.1. Delivery times provided to, or agreed with, the customer are for reference only and are contingent upon the clarification of all technical issues and details concerning implementation of the deliverable. They are binding only if they have been documented as such in writing.
10.2. The validity of agreed terms of delivery is predicated on the customer’s fulfillment of the Customer Cooperation obligations described in §7.
10.3. Delivery time obligations are defined as fulfilled when:
- BE.services has made the deliverable and/or service available to the customer
- With the obligation for the undertaking of programming services, the realization of programming services has begun in our office or at the customer’s site
- In case of a contractually agreed completion date, BE.services expresses its readiness to surrender the owed delivery for test purposes and for the case that acceptance is to happen immediately, we express our readiness to surrender the final delivery for final acceptance
- BE.services has begun maintenance services in case of maintenance contract or order for maintenance services;
10.4. We are also entitled to partial deliveries, provided this is reasonable for the customer.
10.5. BE.services shall not be deemed liable for failure to meet documented agreed delivery date(s) in case of acts of God, legal or political shifts resulting in changed official approval or legal statute, unanticipated/unavoidable operational disturbances, labor disputes, unanticipated material procurement problems encountered by BE.services or any BE.services supplier.
10.6. In case of programming services at customer’s site and the herewith commissioned employee falls ill after the beginning of the programming activity, the delivery time is delayed by the period of illness of the employee to a maximum time of one month per case of illness.
10.7. Should BE.services demonstrate that, despite a careful selection of our hardware and software suppliers and in spite of necessary contracts, a supplier did not deliver mission-necessary component(s) on time, the delivery time is extended by the period of the delay caused by the BE.services’ supplier.
11 Retention of title
Unless contractually documented otherwise, software delivered by BE.services remains the intellectual property of BE.services until full payment of accounts payable for services rendered has been received.
The acceptance of a delivery and/or service must occur in writing after delivery and request for acceptance. A delivery and/or service is considered accepted by the customer if used in the field on a functional product and/or application; or if no objections related to the delivery and/or service were registered with BE.services within 6 weeks after delivery. In the event that neither an official acceptance or error/bug report information are registered with BE.services within 6 weeks after delivery, the delivery and/or service is deemed accepted. Insignificant defects may not be subject for refusal of acceptance.
We are entitled to subcontract part or all of the ordered development and/or service and/or maintenance to a third-party company, partner company, or a company legally bound to BE.services GmbH.
14 Infringement of rights
Compensation claims related to injuries of commercial protective rights and copyrights towards us and our employees are excepted if no coarse carelessness or intention from us and our employees is determined or the non-injury of commercial protective rights and copyrights were guaranteed. This restriction of liability is not valid in case of an injury of the essential contract duties (cardinal's duties) by us and our employees. Should a compensation for coarse carelessness against us or our employees be claimed, the compensation is limited to the typically predictable damages.
15 Warranty, defects, liability
15.1. The scope of delivery and/or service is to be checked by the customer immediately after delivery for correctness and completeness. Discovered omissions or defects are to be sent to BE.services together with an exact description of the fault in writing. Obvious omissions or defects must be sent in writing to us immediately upon delivery; otherwise the claim will be excluded from the guarantee. Defects discovered later are also to be immediately indicated to us; otherwise the scope of delivery and/or service will be deemed accepted.
15.2. BE.services does not guarantee against damages which may arise from improper use, faulty use and treatment, natural fatigue, omitted servicing, inappropriate use, chemical electro-chemical or electric influence etc. We do not guarantee the performance level of a software delivered by us if other software / third-party programs influence this running ability. We do not guarantee against loss of data or damages originating from improper, inappropriate or missing data protection strategies and emphasize the customer’s responsibility for data protection and operational security.
15.3. BE.services does not guarantee for damages which are caused by computer viruses, unauthorized access on the Internet or data lines (hacker), operating system failures and so-called standard software (e.g., Microsoft Office).
15.4. The term during which the fault claims can be applied – except in the case of compensation claims - is twelve months from transfer of perils, for fraudulent concealment of a fault.
15.5. Faulty programming or services can only be claimed/acknowledged if the delivered product or service deviates from the specifications signed by the customers and/or the programming does not correspond to the generally accepted standards for such programming services.
15.6. In case of such faulty programming or services, BE.services is entitled to remediate the defects.
16 Compensation / limitation of liability
16.1. In case of consulting to the customer for recommendation in choice and purchase of hardware, this consulting applies only to the suitability of the hardware in regards to the software programming services related to this hardware and delivered by us.
16.2. Compensation claims for faulty programming or services or violation of obligations are excluded, if no coarse carelessness or intentional violation, by BE.services and/or our employees, of essential contract duties (cardinal's duties) and/or of life, body, health and/or breach against product liability act is determined.
16.3. The liability for loss of production and/or lost profit is excluded in case of coarse carelessness.
16.4. Compensation claims because of delays and/or lack of delivery and/or service are excluded if no coarse carelessness or intention from BE.services and/or our employees is determined.
The parties commit to hold confidential, unlimited in time, all information marked as confidential or obviously recognizable, due to their content, as business secrets or trade secrets and provided within and for the aim of a cooperation between the parties. Should exploratory discussions not result in a cooperation between the parties, the confidential information is not to be copied, recorded or forwarded to a third-party. Each party is obliged to make sure that its employees comply with these rules by suitable contractual agreements.
All claims of the customer, independent of the legal basis, are subject to a limitation period of 12 months after the delivery or services unless otherwise stipulated by law.
The customer agrees to be listed as reference. BE.services is entitled to use the customer’s name and logo for BE.services’ marketing activities (website and marketing material). The customer is entitled to revoke this approval any time.
20 Applicable law, jurisdiction
20.1. The law of the Federal Republic of Germany is exclusively the governing law for these general terms and conditions as well as any other agreements made between the parties, with the exception of the United Nations Convention on Contracts for the International Sales of Goods (CISG).
20.2. The exclusive legal venue for any disputes related to any agreement made between the parties is Kempten (Allgäu), Germany.
21 Concluding provisions
21.1. Verbal additional agreements are not valid.
21.2. Should a single regulation be ineffective, the effectiveness of the other regulations remains untouched.
21.3. Changes and/or supplements of the contract require a written documentation. This is also valid for a change in these general terms and conditions of business.
21.4. Working days are Monday through Friday.
21.5. Business hours are Monday through Friday, from 8.30am to 5.30pm Central European Time (CET) with the exception of national federal bank holidays and federal bank holidays of the state of Bavaria.
21.6. Place of fulfilment is the place of business of BE.services GmbH.