General Terms and Conditions of
Business and Delivery of Quadoa Optical
Systems GmbH
1. Scope of application
1.1. The following general terms and conditions
(hereinafter: “GTC”) apply to all contracts
between Quadoa Optical Systems GmbH,
Silvio-Meier-Str. 1, 10247 Berlin (hereinafter: “Quadoa”)
and its customer (hereinafter: “customer”), insofar
as the customer is an entrepreneur within the
meaning of Section 14 BGB (German Civil Code),
legal entitiy under public law or a separate public
estate. These General Terms and Conditions do not
apply to consumers within the meaning of Section
13 BGB (German Civil Code).
1.2 These GTC apply exclusively. Deviations hereof
are only effective if they have been confirmed in
writing by Quadoa. Contradicting conditions of
contract are hereby expressly rejected.
1.3 The GTC also apply if Quadoa carries out the
delivery to the customer without reservation in the
knowledge of conflicting or deviating conditions of
the customer.
1.4 Individual agreements made with the customer
on a case-by-case basis (including side agreements,
additions and changes) always have priority over
these GTC. A written contract or written
confirmation from Quadoa is decisive for the
content of such agreements, subject to evidence to
the contrary.
1.5 Legally relevant declarations and notifications by
the customer in relation to the contract (e.g. setting
a deadline, reminder, withdrawal) must be made in
writing, i.e. in writing or text form (e.g. letter, e-mail,
fax). Statutory provisions on form and other
evidence, especially in the event of doubts about the
legitimacy of the declaring party, remain unaffected.
1.6 References to the validity of legal regulations are
only used for clarification purposes. Even without
such a clarification, the statutory provisions apply,
unless they are not directly changed or are explicitly
excluded in these GTC.
2. Conclusion of the contract
2.1 Quotes from Quadoa and all information on
projects and services as well as prices are always
subject to change unless we have designated them
as binding or are recognizable as binding. Sending a
pre-signed contract is considered a binding offer.
2.2 Unless a commitment period is specified, we are
committed to this offer for one month in the case
of a binding offer.
3. Subject of delivery and performance
3.1 General regulations for the subject of
delivery and performance
3.1.1 The deliveries from Quadoa correspond to the
content of the contract recorded in text form. A
different or more extensive quality of the delivery
item is only considered agreed if it has been
explicitly confirmed in writing by Quadoa.
3.1.2 Representations in documentation, product
descriptions or advertising by Quadoa do not
constitute an agreement on quality, assurances or
guarantees. Quality information and guarantees are
to be designated as such and require written
confirmation from Quadoa. Without this written
confirmation, advertising or other public statements
will not result in any obligations on the part of
Quadoa
3.1.3 Services and work (e.g. training, instruction or
technical support) that are not covered explicitly by
the service descriptions of the contract must be
agreed and paid for separately.
3.2 Transfer of the software „Quadoa Optical
CAD“
For the transfer of the software "Quadoa Optical
CAD" on the basis of purchase, rental or other
license agreements, the following provisions apply
in addition to the provisions in Section 3.1.
3.2.1 Unless otherwise agreed, the software is
compatible with the following operating system
versions and has the following requirements with
regard to the hardware to be used (Note: It is strictly
recommended to test your personal computer configuration
with the free trial version of Quadoa Optical CAD before
purchase, in order to make sure that Quadoa Optical CAD
runs on your personal computer):
-
Operating system: Windows 10 or higher; Linux
-
Graphics card with OpenGL 3.3 or higher
-
At least 4 GB of RAM
-
At least 200 MB free hard disk space
-
At least 1280 × 720 screen
-
USB connection for USB dongle
3.2.2 The software is delivered in executable form
(as object programs) including an operating manual
(user documentation or online help) and the
installation instructions. The operating instructions
and the installation instructions may also be made
available to the customer electronically. As far as the
Software contains interfaces to software not to be
delivered by Quadoa, Section 69 d of the German
Copyright Act applies. Before decompiling, the
customer first requests the necessary information
from Quadoa.
3.2.3 The Software is installed and put into
operation by the customer. All support services
provided by Quadoa at the request of the customer
(in particular preparation for use, installation and
demonstration of successful installation,
instruction, training and consulting) will be
remunerated on a time and material basis, unless
otherwise agreed.
3.2.4 The Software is secured against multiple use
and transfer in breach of contract. There are three
options available to the customer to unlock the
Software. The customer must decide on one option
when concluding the Agreement.
a) Hardware key: In this case, the Software is
unlocked by means of a USB plug. A commercially
available USB port must be present and
permanently available on the computer used.
Restrictions regarding the required standard of the
USB version may result from Annex A. When using
a hardware key, the customer can migrate the
Software automatically to a new computer if the
technical requirements are met on this computer.
b) Software key. In this case, the Software is
unlocked by the customer entering an encrypted
code. When the code is entered, the purchased
Software is connected to the device on which it is
installed, so that migration of the Software to a new
device by the customer cannot take place and a
change in the hardware architecture of the device
used can lead to a failure of the software.
c) Hardware key (network version): In the network
version of the hardware key, the Software is
activated on one or more PCs that are connected in
a computer network. The same technical
requirements apply to the hardware key as under a).
The computers must be permanently connected to
the functioning network in order to use the
Software.
3.2.5 Upon full payment of the agreed fee, the customer
receives a non-exclusive, unlimited right to use the
software to the extent granted in the contract or the
license certificate. Prior to complete payment of the fee,
all data carriers and the user documentation provided
are subject to retention of title. The software may
only be used by a maximum of one natural person at the
same time. Under no circumstances does the customer have
the right to rent out the purchased software or to
sublicense it in any other way, to reproduce or make
it accessible to the public in a wired or wireless manner,
or to make it available to third parties for a fee or free
of charge. The right to use and exploit the software is
limited to civil law purposes. Excluded from the license
is any use for the development of products that are
dedicated exclusively for armaments or for direct
military purposes. In particular, the use of the software
for target systems, laser weapons, military surveillance
and the use of the software to develop such systems are
excluded from the license granted.
3.2.6 The customer may transfer the right to use the
Software to another user if the customer waives the
right to use the Software.
3.2.7 The customer is only entitled to decompile and
reproduce the software if this is legally stipulated.
However, this only applies under the condition that
Quadoa has not made the necessary information
available to the customer within a reasonable period
of time upon request.
3.2.8 The customer is entitled to permanently
transfer the acquired software to a third party by
handing over the license certificate and the
documentation. In this case, he will completely stop
using the program, remove all installed copies of the
program from his computer and delete all copies on
other data carriers, unless he is legally obliged to
keep them for a longer period. At Quadoa’s request,
the customer will confirm in writing that the
measures mentioned have been carried out in full
or, if necessary, explain the reasons for longer
storage. Furthermore, the customer will expressly
agree with the third party that the scope of the
granting of rights in accordance with this Section 3.2
will be observed.
3.2.9. Universities and research institutions can acquire
a research license. The research must be carried out
and accommodated on site at the university or research
institution and must be funded by the institution itself.
The use of a research license for projects funded by
third-party funds is not permitted.
3.2.10 If the customer uses the contractual software
to an extent that exceeds the acquired rights of use
qualitatively (with regard to the type of permitted
use) or quantitatively (with regard to the number of
licenses acquired), he will immediately acquire the
rights of use necessary for the permitted use. If he
fails to do so, Quadoa will assert its rights
3.2.11 Copyright notices, serial numbers and other
features used for program identification may not be
removed or changed from the contractual software.
3.3 Software support and maintenance
3.3.1 Unless otherwise agreed, Quadoa will maintain
the purchased software free of charge for the
customer (hereinafter: “maintenance”) for a period
of one (1) year starting with the conclusion of the
contract (hereinafter: “maintenance period”).
Maintenance includes the elimination of errors in
the program, the updating or extension of programs
and the exchange for improved software including
documentation ("update"). The maintenance also
includes access to the documentation belonging to
the programs as well as to files or database material
covered by the service certificate.
3.3.2. The elimination of malfunctions and damages
caused by improper handling on the part of the
customer, by the influence of third parties or by
force majeure is not subject of this Agreement, but
can be agreed upon in individual cases against
separate remuneration. The same applies to damage
and malfunctions caused by environmental
conditions at the place of installation, by faults or
non-performance of the power supply, faulty
hardware or other effects for which Quadoa is not
responsible.
3.3.3 Software maintenance shall be carried out by
qualified personnel who are familiar with the
programmes designated in the performance
certificate. Quadoa shall provide the appropriate
state-of-the-art tools for the efficient execution of
the maintenance work, such as test programs, test
data, compilation software ("compiler"), debugging
programs ("debugger") and the like. For the
maintenance of software provided by Quadoa,
Quadoa shall regularly transmit the latest program
version and only this version will be maintained. In
the same way Quadoa will adapt the corresponding
documentation.
3.3.4 The person responsible for the system named
by the customer in this Agreement and his deputy
will receive assistance by Quadoa via email in case
of malfunctions of the Software and operator
problems. A willingness to provide support that
goes beyond this requires a special agreement.
3.3.5 The prerequisite for the maintenance is the
fulfillment of the following duties of cooperation of
the customer:
- The customer shall inform Quadoa immediately
about occurring defects and will support
Quadoa in the investigation and elimination of
defects within the scope of what is reasonable.
This includes in particular to submit written
defect reports to Quadoa upon request and to
provide other data and protocols which are
suitable for the analysis of the defect.
- The customer must allow Quadoa‘s support
staff access to the data processing units on which
the programs designated in the service certificate
are installed. The customer shall also keep the
technical facilities required for the performance
of the maintenance work, such as power supply,
telephone connection and data transmission
lines, ready for operation and provide them free
of charge to a reasonable extent.
- The customer nominates a competent employee
to Quadoa who is able to provide the
information necessary for the execution of the
Agreement and to make or arrange for decisions
himself. The customer shall keep accurate
records of the commencement and duration of
downtime for each program designated in the
service certificate. It is the customer's
responsibility to perform proper data backups
and to properly maintain and service the
Software and the hardware environment of the
Software.
3.3.6 Additional services not covered by the
maintenance will be provided by Quadoa upon
request of the customer against separate payment, if
sufficient support staff is available at the time of the
request. The calculation is based on Quadoa’s
hourly rates valid at the time of performance, taking
into account the time required.
3.3.7 After the maintenance period has expired, the
customer can conclude a maintenance contract with
Quadoa for further maintenance.
4. Period of delivery and performance
4.1 If Quadoa is waiting for the customer's
cooperation or information or is otherwise hindered
in the execution of the contract through no fault of
its own, the delivery and service deadlines are
considered to be extended by the duration of the
hindrance and an appropriate start-up time after the
end of the hindrance. Quadoa must inform the
customer of the hindrance in advance.
4.2 Quadoa is only in default with a reminder. All
reminders and deadlines set by the customer must
be in writing to be effective; any grace periods set
must be at least twelve working days.
4.3 The customer may not refuse to accept
deliveries and services due to minor defects.
4.4 The delivery deadline will be extended
accordingly if the delivery deadline cannot be
upheld due to force majeure and other disruptions
for which Quadoa is not responsible, e.g. due to
force majeure, war, terrorist attacks, import and
export restrictions, labor disputes, including those
affecting subcontractors. The disruptions for which
Quadoa is not responsible within the meaning of
the preceding sentence also include (temporary)
plant closures as a result of official orders or general
orders, in particular due to pandemics or the
Infection Protection Act, as well as operational
disruptions due to pandemics or comparable
circumstances.
5. General obligations of the customers
5.1 The customer shall appoint a responsible
contact person. This person can and will make
binding decisions on behalf of the customer or
bring them about immediately. The contact person
is available to Quadoa for necessary information.
The customer shall ensure that competent
personnel are available for the use of the Software
at the latest at the time of delivery.
5.2 The customer shall acknowledge that the
Software including the operating instructions and
further documents - also in future versions - are
protected by copyright. Source programs in
particular are trade secrets of Quadoa. The
customer shall take unlimited precautions that
source programs are not made accessible to third
parties without Quadoa’s consent. The transfer of
source programs requires Quadoa’s consent, which
may not be refused against good faith. Quadoa has
to deliver source programs only on the basis of an
explicit agreement.
5.3 The customer may not do anything that could
encourage unauthorised use. In particular, the
customer may not attempt to decompile the
programs, unless entitled to do so according to
Section 3.2.7. The customer shall inform Quadoa
immediately if it has knowledge that unauthorised
access is imminent or has occurred within its area.
5.4 The customer shall adequately secure work
results and other files on the system used
("backup"). The backup shall be made in
accordance with the economic and ideal significance
of the data concerned. As a guideline, a backup at
least once per working day is customary.
6. Terms of payment
6.1 The agreed prices are exclusive of the applicable
statutory sales tax.
6.2 Unless otherwise agreed in writing, the customer
pays within 14 days of the invoice date without any
deduction. Quadoa can, however, also make
delivery dependent on delivery versus payment
(DVP) or an advance payment, e.g. if there is no
business relationship with the customer, or if the
delivery is to take place abroad or if there are
reasons to doubt the punctual payment by the
customer.
6.3 The invoice is issued with each individual
delivery or service. No discount is granted. If the
payment deadline is exceeded, Quadoa is entitled to
charge default interest at a rate of 8% above the base
rate. We reserve the right to claim further damages.
Quadoa's claim to commercial maturity interest
(Section 353 HGB (German Commercial Code)
remains unaffected against merchants.
6.4 The customer only has the right to withhold
payments or to offset them against counterclaims if
his counterclaims are undisputed or have been
legally established. He may not assign his claims to
third parties.
7. Warranty
7.1 Quadoa warrants the contractual quality in
accordance with the rules of sales law, unless
otherwise agreed. Quadoa is entitled to make
technical changes and improvements at any time.
7.2 The customer shall report defects in writing in a
comprehensible and detailed form, stating all
information useful for the identification and
analysis of the defect. In particular, the work steps
that led to the occurrence of the defect, the
manifestation as well as the effects of the defect
shall be indicated. The Customer shall support
Quadoa as far as necessary in the removal of
defects, in particular, upon Quadoa’s request, to
send a data carrier with the Software in question and
to provide working materials.
7.3 Claims based on material defects shall not arise
where the deviation from the agreed quality is only
minor or where the usability is impaired only
insignificantly.
7.4 Quadoa can support the customer with alleged
warranty claims in the search for the error. If the
error cannot be proven to be attributable to
Quadoa, Quadoa will invoice the customer for these
services.
7.5 If the delivered item is defective, Quadoa can
first choose whether Quadoa provides
supplementary performance by eliminating the
defect (subsequent improvement) or by delivering
software that is free of defects (replacement
software). Quadoa is, however, entitled to make the
subsequent performance owed dependent on the
customer's payment of the purchase price due.
However, the customer is entitled to retain a portion
of the purchase price that is reasonable in relation
to the defect. Quadoa bears or reimburses the
expenses required for the purpose of inspection and
supplementary performance in accordance with the
statutory provisions if there is actually a defect.
Otherwise Quadoa can demand reimbursement of
the costs incurred from the unjustified request to
remedy the defect, unless the lack of defect was not
recognizable to the buyer.
7.6 If the supplementary performance has failed or
a reasonable deadline to be set by the customer for
the supplementary performance has expired
without success or is dispensable according to the
statutory provisions, the buyer can withdraw from
the purchase contract or reduce the purchase price.
In a minor defect, however, there is no right of
withdrawal.
7.7 The provisions in Section 9 of these GTC apply
to claims for damages and reimbursement of
expenses occurred in vain.
7.8 For legal defects that are not based on the
infringement of third-party property rights, the
provisions of this Section 7 apply accordingly.
8. Knowledge and obligation to examine
and notify
8.1 As a fundamental matter, Quadoa is not liable
for defects which the customer is aware of when the
contract is concluded or which is not aware of due
to gross negligence (Section 442 BGB (German
Civil Code)).
8.2 Furthermore, the customer's claims for defects
require that he has complied with his statutory
inspection and notification obligations (Section 377
and Section 381 HGB (German Commercial
Code)). The customer must report defects in a
comprehensible and detailed form, stating all
information that is useful for defect detection and
analysis. In particular, the work steps that led to the
occurrence of the defect, the appearance and the
effects of the defect must be specified.
8.3 If a defect becomes apparent during the delivery,
the inspection or at any later point in time, Quadoa
must be notified of this immediately in writing. In
any case, obvious defects are to be reported in
writing within 3 working days from delivery and
defects not recognizable during the inspection
within the same period from discovery. If the
customer fails to properly examine and / or report
defects, Quadoa is not liable for defects that are not
reported, not reported on time or not properly
reported in accordance with statutory provisions.
9. Liability for other cases
9.1 Unless otherwise stated in these GTC including
the following provisions, Quadoa is liable in the
event of a breach of contractual and noncontractual
obligations in accordance with the
statutory provisions.
9.2 Quadoa is liable for damages - regardless of the
legal reason - within the framework of fault-based
liability in the event of willful intent and gross
negligence. In the event of simple negligence,
Quadoa is liable, subject to statutory liability
restrictions (e.g. diligence in its own affairs;
insignificant breach of duty), only (a) for damage
resulting from injury to life, limb or health and (b)
for damage resulting from the breach of an essential
contractual obligation (an obligation whose
proper fulfilment makes fulfilment of the
agreement possible at all and on whose observance
the contractual partner regularly relies and may rely);
in this case, however, Quadoa's liability is limited to
the replacement of the foreseeable, typically
occurring damage.
9.3 The limitations of liability resulting from Section
9.2 also apply to third parties as well as to breaches
of duty by persons (also in their favor) for whose
fault Quadoa is responsible in accordance with
statutory provisions. They do not apply if a defect
has been fraudulently concealed or a guarantee has
been given for the quality of the goods and for
claims of the customer under the Product Liability
Act.
9.4 Because of a breach of duty that does not consist
of a defect, the customer can only withdraw or
terminate if Quadoa is responsible for the breach of
duty. A free right of termination of the customer (in
particular according to Section 650 and Section 648
BGB (German Civil Code)) is excluded. In addition,
the legal requirements and legal consequences
apply.
10. Statute of limitations
10.1 In deviation from Section 438 (1) No. 3 BGB
(German Civil Code), the general limitation period
for claims arising from material and legal defects is
one year from delivery. If an acceptance has been
agreed, the limitation period begins with the
acceptance.
10.2 The above limitation period of the sales law
also applies to contractual and non-contractual
claims for damages by the customer based on a
defect in the goods, unless the application of the
regular statutory limitation period (Section 195 and
Section 199 BGB (German Civil Code)) would lead
to a shorter limitation period in individual cases.
Claims for damages by the customer in accordance
with Section 9.2 Clause 1 and Section 9.2 Clause 2
a) as well as under the Product Liability Act shall
only expire in accordance with the statutory
limitation periods.
11. Retention of title
Quadoa retains ownership of the goods sold until
all current and future claims from Quadoa from the
purchase agreement and an ongoing business
relationship (secured claims) have been paid in full.
12. Third-party rights
12.1 Quadoa guarantees that the product does not
conflict with any third-party rights.
12.2 If a third party makes legitimate claims against
the customer due to the infringement of a
commercial property right or copyright within the
meaning of Section 12 (hereinafter: "property
rights") through products supplied by Quadoa and
used in accordance with the contract, Quadoa is
liable to the customer as follows:
12.2.1 Quadoa will, at its own option and at its own
expense, either obtain a right of use for the product,
modify the product so that the property right is not
infringed, or exchange the product. If Quadoa is not
able to do this under reasonable conditions, Quadoa
has to take back the product against reimbursement
of the purchase price.
12.2.2 The aforementioned obligations of Quadoa
only exist if the customer informs Quadoa
immediately in writing of the claims asserted by
third parties, does not acknowledge a violation and
Quadoa reserves the right to take all defense
measures and settlement negotiations. If the
customer ceases to use the product to reduce
damage or for other important reasons, he must
point out to the third party that the cessation of use
does not entail recognition of an infringement of
property rights. If the customer is responsible for
the infringement of property rights, his claims are
excluded.
12.3 Claims by the customer are also excluded if the
infringement of property rights is caused by special
requirements of the customer, by an application not
foreseeable by Quadoa or by the fact that the
product is changed by the customer or used
together with products not supplied by Quadoa.
12.4 Further claims against the supplier are
excluded; Clause 9 (Liability for other cases)
remains unaffected, as does the customer's right to
withdraw from the contract.
12.5 The contractual partners will immediately
inform each other of any risks of injury and alleged
cases of injury that become known and will give
each other the opportunity to mutually counteract
such claims.
13. Final clause
13.1 Quadoa and the customer agree to seek an
amicable solution when asserting rights; they will
take into account the respective special situation of
the contractual partner.
13.2 Should any provision of these GTC and the
agreements be or become ineffective, this shall not
affect the validity of the rest of the conditions. The
contracting parties are obliged to replace the invalid
provisions by valid provisions which most
approximate the invalid provisions economically.
13.3 The place of jurisdiction for all disputes arising
from and in connection with this contract is Berlin
(Germany) or, at Quadoa’s option, the seat of the
business premises that is executing the order,
provided that the customer is an entrepreneur, a
legal entity under public law or a separate public
estate. This also applies if the customer relocates his
domicile from within Germany after the conclusion
of the contract.
13.4 German law shall be applicable, to the
exclusion of the conflict of laws provisions and the
UN Convention on Contracts for the International
Sale of Goods (CISG).
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