Standard Terms of Business for the Sale of Hard- and Software
§ 1 General Principles
All performances are exclusively based on the Standard Terms of Business as shown below. Any terms to the contrary set by the customer will only be accepted on condition that such have been explicitly agreed upon in writing.
The said Standard Terms of Business shall also be applicable to any follow-up orders and possible repairs of the deliveries even if this fact has not been pointed out a second time.
Collateral agreements as well as alterations of and amendments to the contract and the Standard Terms of Business require the written confirmation by DENX Computer Systems, hereinafter called DENX.
§ 2 Binding Force of Offers and Conclusion of a Contract
In each and every case the offers submitted by DENX are subject to confirmation. A contract will not be brought about before a customer's order has been confirmed in writing by DENX.
DENX will retain possession of any preliminary estimates, drawings and other data and information pertinent to the offer until the contract has been brought about in full.
§ 3 Prices
DENX is entitled to appropriate price adjustments if there should be unforeseen changes of customs duties, import and export fees as well as exchange rates.
§ 4 Delivery of Goods, Delay in Delivery, Impossibility of Performance
The written form is mandatory when setting forth the terms of delivery. The times of delivery shall be scheduled on a calendrical basis. Cases of force majeure, operational breakdown, strikes, riots or civil unrest do not constitute a delay in delivery. DENX will have to furnish proof of employing the diligence of a prudent businessman.
DENX are entitled to make partial deliveries.
If DENX should not perform on time, the customer may withdraw from the contract after setting an additional period of time of reasonable length in writing and warning against the refusal of taking delivery. The said additional period of time shall run for at least four weeks.
The customer is not entitled to send a dunning letter or set a time-limit if the completion date agreed upon should not be met due to the customer's subsequent wishes for alterations.
§ 5 Terms of Payment
Each and every invoice falls due within 14 days from the date of issue unless otherwise provided.
The customer is entitled to a setoff only on condition that the counterclaims have been established uncontested or non-appealable.
In the event of default in payment DENX are entitled - notwithstanding any other established rights - to charge interest on payment in arrears as from the due date to such an amount as DENX are charged by the bank, at least, however, to an amount of 5%. Payment of interest shall be made without undue delay.
If a customer should fail to pay, DENX may withdraw from the contract after setting an additional period of time of reasonable length or asking for damages on account of non-performance. Warning the customer against the refusal of taking delivery is not necessary.
If the customer's financial situation should considerably deteriorate all the debts having accrued from the business are liable to fall due immediately.
§ 6 Extent of Delivery
DENX undertake the liability to hand over the ordered hard- or software to the customer. The respective place of performance will be agreed upon from case to case. DENX is bound to give the customer in written and/or typewritten form the directions for use and the producer documentation as well as additional documents concerning the product specification.
Until payment in full of the invoiced purchase price title to all the goods delivered shall be retained by DENX.
Only the contents of the sales contract are authoritative with respect to the extent of delivery and performance.
§ 7 Wishes for Alterations
DENX shall not make allowance for any wishes for alterations expressed by the customer subsequent to the conclusion of the contract if such alterations constitute a divergence from the original subject matter of the contract and, in particular, if the said alterations cannot reasonably be expected of DENX with respect to the liabilities incurred on their part against suppliers.
§ 8 Notification of Defects
The customer shall notify the supplier without undue delay, however, no later than six (6) months after receipt of the subject matter of the contract, of any objections referring to incomplete or incorrect deliveries, or of complaints because of apparent defects.
A notification of defect takes effect only on condition that the deficiency having become manifest is made known in writing to DENX, containing a comprehensible description of the said defect.
In the event of a justified notification of defect the right of retention can only be exercised if the difference between the defect and the total price is reasonable and appropriate.
The period of guarantee expires six (6) months after taking delivery. Defects are remedied at DENX's option by subsequent rectification or substitute delivery.
If the remedy of a defect or substitute delivery has failed twice, the customer is entitled to file a claim for the rescission of sale or the reduction of the purchase price. Any claims for damages resulting from a negligent breach of the supplier's obligation to remedy a defect or a delay in such obligation to remedy are excluded. Claims based on warranty cannot be transferred.
If the customer is in default of acceptance or fails to comply with his obligations to cooperate, the period of guarantee shall commence as from the default of acceptance, respectively, one month after DENX have declared readiness to provide the installation if such has been agreed upon.
Should alterations have been made to the goods delivered without the written consent of DENX such warranty is inapplicable.
Only those warranted characteristics are considered valid which have been expressly agreed upon in writing by a specially authorized representative of DENX.
DENX assume liability for larger damages only in case the warranty was meant of afford comprehensive protection against precisely those very damages.
In the event of damage the customer shall permit DENX the rectification in order to bring about a reduction in defect, notwithstanding these claims. With respect to the technical matter the customer is bound to act in accordance with the instructions given by DENX referring to those. The maximum amount for which liability will be assumed is considered three times as much as the contract value. However, such maximum amount shall not exceed 25,000.00 EUR.
§ 9 Other Claims for Damages
Damages due to delay and claims for damages due to non-performance can only be sued for by the customer in so far as such were caused intentionally or by gross negligence on the part of DENX.
The customer can withdraw from the contract if DENX are responsible for the impossibility of performance. Also in this case any such claims for damages arise only if they were caused intentionally or by gross negligence on the part of DENX.
The supplier assumes full liability for damages arising from warranty of title.
The liability for an initial inability to perform shall be limited to five times the purchase price. However, such amount shall not exceed 25.000,00 EUR. The liability is also limited to such damages which must be taken into account as a typical phenomenon whenever a transfer of hardware or software takes place.
In addition, DENX are fully liable only for damage caused intentionally or by gross negligence. This also applies to their legal representatives and managerial staff.
In the event of a breach of important contractual obligations (cardinal obligations) DENX assume full liability for their person and their vicarious agents with an amount five times the purchase price. However, such amount shall not be in excess of 25.000,00 EUR.
DENX do not assume liability for indirect damages, consequential damages and the loss of profit.
All such claims for damages are subject to a one-year limitation period from the date on which the right arose.
The liability for a loss of data is limited to the typical restoration costs which would have been incurred by the regular making of backup copies whereby due regard is paid to running the risk of a loss.
If DENX give advice to the customer within the scope of the sale or take over the installation of the goods any and all liability resulting thereof shall be disallowed.
§ 10 High Risk Activities
Unless explicitly specified in writing in a particular case, DENX's products are not fault-tolerant and are not designed, manufactured or intended for use or resale as online control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation and communication systems, air traffic control, direct life support machines or weapon systems, in which the failure of products could lead directly to death, personal injury, or severe physical or environmental damage. DENX specifically disclaim any express or implied warranty of fitness for any high risk uses listed above.
§ 11 Validity of the German Engineering Standard Rules (DIN)
If discrepancies should arise in the course of performing the contract between the parties with respect to data processing terms and symbols, product quality specifications, layout requirements or the like, the observance of the respective rules of the German Engineering Standard (DIN) as were specified when the contract has been concluded, is mandatory due to the absence of an agreement to the contrary.
§ 12 Taking Delivery of the Products
A formal taking delivery of the goods is not necessary unless a pertinent agreement has been entered into. The goods are considered accepted as soon as they are handed over to the customer. If the customer refuses the acceptance of the goods the same is considered as effected by having placed such at the customer's disposal.
§ 13 Choice of Law Cause
The contractual relations exclusively governed by the law of the Federal Republic of Germany. The regulations of the UN Sales Convention and other international agreements are not applicable.
§ 14 Place of Jurisdiction
It is agreed upon that Munich shall be the venue for all disputes arising from the contractual relationship, provided such venue is permitted by statute.
§ 15 Supplementary Provisions
If any provision of these Standard Terms of Business should be ineffective the legal validity of the other provisions shall not be affected as a result of this nullity. Instead, the parties undertake to modify the said invalid provisions in a way which imparts an approximate idea of the legal and economic meaning and purpose of DENX's intention or which comes closest to it. If a loophole should be found in the said Standard Terms of Business the parties undertake to fill such loophole by an arrangement which will further the contractual purpose of the other provisions as far as possible.
DENX Computer Systems Standard Terms of Business