Standard Terms of Business for DENX Software Engineering:
§ 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 Software Engineering, 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
If the period between the ordering of software and the delivery thereof is in excess of three months DENX is entitled to be paid on account in an adequate amount.
One third of the prospective overall costs at the time of the placing of the order, one third on completion and the last third 14 days after taking delivery of the software are considered as adequate.
DENX is entitled to appropriate price adjustments if there should be unforeseen changes of customs duties, import and export fees or 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 is 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 dunning letter or setting deadlines if the agreed completion date should not be met due to the customer's subsequent wishes for alteration. Hence, such delays cannot be attributed to DENX's failure.
§ 5 Terms of Payment
Any invoice falls due within 14 days from the date of issue except as 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 is entitled - notwithstanding any other established rights - to charge interest on payment in arrears as from the due date to such an amount as DENX is 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 relations are liable to fall due immediately.
§ 6 Extent of Delivery
DENX undertakes the liability to develop the software as agreed upon and leave such to the customer.
§ 7 Specification of the Software
The software will be produced by DENX in compliance with the requirements as set forth in the requirements specification. The said specification will be drawn up by the customer with DENX providing adequate consulting services. On completion of the requirements specification such will be attached to the contract on the production of software.
Only the contents of the requirements specification are authoritative with respect to the extent of delivery and performance.
§ 8 Wishes for Alteration
DENX is not bound by contract to make allowance for any subsequent wishes for alteration with respect to the functional features, program structure, screen layout or other items if such alterations constitute a divergence from the original subject matter of the contract, in particular, if they are not in conformity with the requirements specification or other specifications of features which form the basis for the program production.
However, DENX can make allowance for any wishes for alteration against payment of an appropriate additional remuneration.
§ 9 Obligation to Cooperation
The customer undertakes the obligation - within the bounds of reasonableness - to cooperate in the production of programs. In particular, the said obligation refers to making available such information on data processing and project management as is required for the production of programs such as hardware systems and operating systems, the standard software used, organization charts as well as, if appropriate, the hardware on which the program is later to be run. The presence of the customer in person or that of competent representatives of his firm authorized to judge and decide on defects, functional extensions, functional reductions as well as alterations to the program structure is possible, whenever the necessary test runs and the proof test take place. If appropriate, the customer will also make available the test data required.
§ 10 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. The customer's right to carry the remedy of such defect into effect himself and to be reimbursed for the expenses incurred thereby under § 633, subsection 3, German Civil Code, is hereby explicitly barred.
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 claim for damages resulting from a negligent breach of the supplier's obligation to remedy a defect or a delay in such obligation to remedy is 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 has declared readiness to provide the installation if such has been agreed upon.
Should alterations have been made to the software 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 to 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.
§ 11 Other Claims for Damages
Damage 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 is 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 software takes place.
In addition, DENX is 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 assumes 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 does not assume liability for indirect damages, consequential damages and the loss of profit.
All such claims for damages become statute-barred after twelve (12) months.
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.
§ 12 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 the products could lead directly to death, personal injury, or severe physical or environmental damage. DENX and its suppliers specifically disclaim any express or implied warranty of fitness for any high risk uses listed above.
§ 13 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.
If a German Engineering Standard rule should be altered after the contract has been concluded but prior to the completion of the program, DENX is bound, to an extent which can be reasonably expected of them, to take into account the requirements resulting from the new rule. However, the supplier is not obliged to make substantial alterations to the programming work as well as extended alterations to the program insofar as such can only be achieved by a larger expenditure of time and money.
§ 14 Rights of Protection
DENX releases the customer from all financial obligations which have become non-appealable or were brought about by DENX by way of compromise, if such obligations are based on the allegation that a delivered product constitutes the violation of a German patent right or any other rights of protection. The requirements for this are that the customer notifies DENX of all the claims raised against him and of the subsequent proceedings without undue delay in writing, and that DENX will authorize the customer to conduct and conclude litigation on behalf of his own, and that the customer will provide DENX the appropriate assistance.
DENX is entitled, at its own option, to
- procure the customer the right of a continued use of the product;
- exchange the product or modify it to such an extent that its use does not constitute a violation of the right of protection any longer;
- take back the product and credit the customer with such amount as was reduced according to the depreciation principles if the foregoing measures cannot be implemented under appropriate economic conditions.
With respect to violations of the right of protection the customer is not entitled to claims other than those as specified above.
§ 15 Taking Delivery of the Products
The customer shall examine the software delivered by DENX without undue delay with respect to apparent defects. There is no formal taking delivery of the products. The software is considered accepted as soon as it was handed over unless defects are asserted without undue delay.
§ 16 Choice of Law Clause
The contractual relations are 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.
§ 17 Place of Jurisdiction
It is agreed upon that Munich shall be the venue for all the disputes arising from the contractual relationship, provided such venue is permitted by statute.
§ 18 Provision of Services
The statutory regulations of the Contract for Services shall be the basis for the provision of services by DENX. Supplementary regulations as set forth in the §§ 2, 5, 9, 16 and 17 of these Standard Terms of Business shall apply correspondingly.
DENX does not make any warranty whatsoever. They do not assume liability for damages caused to the customer by DENX's activities unless such result from wilfulness or gross negligence. In other respects, liability is limited as specified under § 11 of this Standard Terms of Business.
§ 19 Supplementary Provision
If any provision of these Standard Terms of Business should be deemed illegal or unenforceable, the remaining provisions shall remain in effect and the invalid provision should be modified to the least degree necessary to remedy such invalidity.