General Terms and Conditions
der CE-CON Safety Inc. – 300 Delaware Avenue, Suite 2110 – Wilmington DE 19801 – USA
1st of March 2020
I. Object of the Agreement
CE-CON Safety Inc. (hereinafter referred to as CE-CON) provides the customer access to CE-CON Safety (hereinafter referred to as CE-CON SAFETY) for cloud-based use. The use of CE-CON SAFETY supports customers in risk assessment and documentation.
The provisions of these General Terms and Conditions (hereinafter referred to as GTC) apply accordingly to other software applications developed by CE-CON, in particular to applications which assist customers in the risk assessment according to the EU Low Voltage Directive, health and safety, environment, to foreign regulations (such as US labor law).
II. Scope, Conclusion
1. These GTC apply to all products or services provided online by CE-CON as far as these orders refer to CE-CON SAFETY or the other software applications mentioned above (under No. I. ``Object of the Agreement``).
2. Our deliveries, services and offers are made exclusively on the basis of these GTC. The GTC of Business are therefore valid for all future business relations, even if not expressly agreed upon. The inclusion of the general terms and conditions of a customer, which contradict our GTC, is already being contradicted.
3. Contract language is exclusively English.
4. You can access and print the currently valid terms and conditions on the website www.ce-con.de/en/company/download-centre.
5. Terms of purchasing requested by the client are hereby expressly rejected and shall not become part of this agreement, regardless of CE-CON’s knowledge of such conditions, unless expressly agreed in writing by CE-CON. This confirmation requierement shall still apply if CE-CON supplies goods and services to the customer without reservation, in full knowledge of the customer’s GTC, which conflict with or differ from the present terms. Any written consent by CE-CON shall in each case apply to the individual instance regulated therein.
6. The presentation of goods on our website does not constitute a binding application for the conclusion of a service contract. Rather, it is a non-committal invitation to order our services.
7. By clicking the “Order now payable” button, the customer submits a binding offer to conclude a service contract. CE-CON shall confirm receipt of this order without delay. However this shall not yet constitute the formation of a contract. CE-CON may accept this binding offer by the customer, unless otherwise agreed with the customer, up to 7 days after its receipt by CE-CON by means of transmitting an order confirmation.
8. A contract comes into force only if we explicitly declare acceptance of your offer or if we release the module you have booked to your use.
III. Scope of Performance
1. The software environment within which the software selected by the customer is to be used is defined by the CE-CON product description.
2. A warranty shall only be granted if it has been expressly designed as such and has been declared writing by CE-CON. The properties of the Software shall be as indicated in the CE-CON product description at the time of acceptance of the respective contract. Other information such as technical data, descriptions, illustrations and drawings are subject to constand change, even where these refer to standards. CE-CON shall only be bound by such information where it has been confirmed in advance by CE-CON as binding.
3. Subject to different arrangements agreed in the contract by the parties, the following work shall not come under the subject matter of the agreement:
- Configuration work
All this work shall be invoiced separately by CE-CON on the basis of current prices for such work.
IV. Services of CE-CON
1. CE-CON SAFETY is a CE-CON cloud-based software for carrying out risk assessements according to international legal requirements.
2. CE-CON SAFETY is a technical aid to the:
• Identification and selection of relevant standards,
• Identification and analysis of hazards,
• Identification of adequate measures,
• Creation of user information,
• Preparation of technical documentation.
CE-CON SAFETY does not replace specialist or legal advice.
3. The customer receives a selection list with short descriptions of European and international laws, harmonized European and international standards, which may be relevant for confromity procedures. The selection list is based on official available.
4. Due to misleading, ambiguous or erroneous representations in the official pages, e.g. by translation errors with respect to data on coexistence periods, errors or incompleteness of the selection list may occur.
5. The selection lists allow the customer to carry out a risk assessment according to the statutory criteria. All information submitted by the customer to the risk assessment is provided by the customer himself and can not be checked by CE-CON in any way for correctness and / or completeness. The customer is responsible for the correctness and completeness of the information entered.
6. For the communication and the data exchange with the customer, CE-CON provides a website, via which CE-CON members gain access to CE-CON SAFETY. The servers used by CE-CON for this purpose are located in computer centers and are connected to the Internet via a complex system architecture. Incoming and outgoing data traffic is routed through routers, load balancers, switches, etc., which each allow a certain maximum data throughput rate. There is no direct connection of individual servers to transfer points in the Internet. The data centers are located within the EU.
7. CE-CON SAFETY has an export function, which enables you to download the documentation created with CE-CON SAFETY (PDF). Whether and to what extent the customer makes use - in particular to the fulfillment of documentation and storage obligations - remains solely to the customer.
8. The availability of the website and the data paths up to the transfer point to the Internet is at least 98% of the annual average.
9. CE-CON informs the customer that restrictions or impairments of services provided by CE-CON may occur outside CE-CON's sphere of influence, such as the unauthorized acts of third parties or force majeure. The hardware and software or technical infrastructure used by the customer can have a negative effect on the performance of CE-CON.
10. CE-CON regularly carries out maintenance work on network systems, maintaining network integrity, interoperability of services and data protection. CE-CON will carry out the maintenance work, as far as is possible, in low-usage times. Should longer performance limitations be required, CE-CON will inform the customer of the nature, extent and duration of the impairment.
11. CE-CON reserves the right to change the technical standards and safety features as long as the change serves an improvement in safety, the amendment is required by law or the authorities, or if the change does not entail significant disadvantages for the customer.
V. Obligations of the customer
1. With the start of the use of the website, the customer has to change the password provided by CE-CON for access to a secure password, which is only known to him, and to change the password regularly during the contract period. Adequate access protection and protection of their data is provided when:
• the password contains at least 7 characters with uppercase letters, lowercase letters and numbers;
• and the password is changed at least every 3 months.
2. The customer has to keep the password securely and to prevent unauthorized access to the password.
3. The customer shall also ensure that no viruses enter the CE-CON systems from his systems. It must not bypass or deactivate CE-CON safety measures. The customer shall report any malfunctions immediately.
4. The customer may only modify contents of CE-CON SAFETY, if this has previously been expressly permitted by CE-CON.
5. Insofar as the customer uploads documents (especially to the technical documentation) to CE-CON computers, he is obliged to not violate copyrights and other rights of third parties. If CE-CON is used by third parties for an infringement which the customer has or is supposed to have committed, CE-CON will be released from all claims of third parties on the first demand. The exemption obligation also covers all reasonable costs of legal defense.
6. The customer shall appoint CE-CON with a contact person with an address with an e-mail address and a postal address.
VI. Formation of Contract; Remuneration; Accounting
1. A contract between CE-CON and the customer shall only be formed upon payment of the license fee for use of the software. Thereafter the customer shall be entitled to use the software pursuant to these General Terms and Conditions.
2. There are no verbal ancillary agreements at the time of conclusion of the contract. Individual agreements (including ancillary agreements, supplements and amendments to these GTC) expressely reached between the customer and CE-CON on an ad hoc basic shall always take precedence over these GTC, to the extent that they have been reached after the conclusion of the contract. A written contract or – in its absence – written confirmation to the customer by CE-CON shall be decisive with regard to the content of such individual agreements.
3. The remuneration for the use of any services provided by CE-CON shall be based on the price list applicable at the time the contract is concluded and the chosen module of CE-CON SAFETY. If additional costs such as duties, taxes, levies or fees charged by third parties should be incurred through acquisition of the software, these shall be met by the customer.
4. CE-CON shall be entitled to increase the remuneration for the services offered at its discretion the first time 6 months after the conclusion of the contract. CE-CON shall be entitled to further increases in remuneration if the last price increase took place at least 6 months ago.
5. The fees are due for payment before the start of the respective billing period, depending on the module monthly, quarterly or annually. Only after receipt of the first payment is the access for the booked module unlocked.
6. CE-CON sends an electronic invoice per e-mail for each payment process. This shipping is free. If the customer requests the postal delivery of an invoice, CE-CON can charge a fee of $ 3.00 per invoice.
7. Payments by the customer shall be made by means of direct debiting. The customer authorizes CE-CON to collect the fees arising from the contractual relationship. If CE-CON does not grant authorization, CE-CON may charge a surcharge of $ 4.00 for each invoice.
8. Any unauthorized use of the software shall be equivalent to a breach of copyright, with the consequence that CE-CON may demand that the customer cease its use and pay compensation of $ 15.00, which will be increased to the actual loss incurred if CE-CON can prove actual higher demages. The customer reserves the right to prove that a damage has not occurred or is significantly lower.
9. In the event of default of payment by the customer with at least two invoices, CE-CON is entitled, without prejudice to other rights, to refuse further service provision and to block its services.
10. If the customer is in arrears with a payment, the customer is obliged to pay the statutory interest on arrears at a rate of 9 percentage points above the basic interest rate. For each warning letter, which will be sent to the customer after the delay, the customer will be charged a fee of $ 3.00, unless a lower or higher damage is proved in the individual case.
11. Offsetting of customer's obligations under this contract is only permissible with claims against CE-CON, which have already been legally established or recognized by CE-CON or have not been denied.
VII. Term and Termination
1. The contract between the parties is established for an indefinite period. The notice period for CE-CON SAFETY depends on the booked module. Unless otherwise agreed, termination is possible with a period of two weeks at the end of the month.
2. If the customer is in default for two successive months with the payment of a not insignificant part of the remuneration, CE-CON can terminate the contractual relationship for good cause without notice. An important reason for termination without notice for CE-CON is also when insolvency proceedings are filed for the customer's assets, opened or the opening is rejected for lack of funds. Rights of termination for important reasons remain also unaffected.
3. CE-CON will maintain the customer account for purposes of data backup two months after the termination of the contract. After this two months, the customer account will be permanently deleted.
VIII. Usage Rights
CE-CON grants the customer a simple and non-transferable right of use for the duration of the contractual relationship with the software CE-CON SAFETY. The customer is not permitted to grant third parties any rights of use.
IX. Liability and Warranty
1. Unless otherwise agreed in these provisions, all compensation claims of the customer or losses of any kind, including for reimbursement of expenses and indirect losses, such as loss of profit, are excluded. This applies in particular to claims for all breaches of obligations resulting from the contractual relationship and from tort. The exlusion of liability shall also apply if CE-CON has used subcontractors or vicarious agents.
2. CE-CON is liable for intent and gross negligence. CE-CON shall be liable for slight negligence in case of damage resulting from injury or damage to the health of persons.
3. In case of slight negligence, CE-CON shall only be liable in the event of a breach of a material contractual obligation, the fulfillment of which allows the proper execution of the contract at first and on which compliance with the customer may be regularly trusted (cardinal obligation) Contract-foreseeable and contract-type damage
4. This limitation of liability also applies to CE-CON's fulfillment allowances.
5. CE-CON shall not be liable for the loss of data in so far as the damage is due to the fact that the customer has failed to carry out sufficient data backup and thereby ensure that lost data can be recovered at a reasonable cost. In so far as the customer is responsible for a loss of data, CE-CON is therefore only liable for the costs of reproducing the data from the backup copies to be generated by the customer and for the restoration of the data that would have been lost even if the data were backed up correctly.
6. The exclusion of liability shall not be applicable in respeckt of claims under product liability law. The aforementioned provisions do not entail a change in the burden of proof to the disadvantage of the customer.
X. Right of Retention / Offsetting
1. The right to retain payments on the grounds of any claims of the customer against CE-CON is excluded, unless the right of retention rests on undisputed or final absolute claims of the customer.
2. Offsetting of the customer’s own receivables against receivables of CE-CON shall not be permitted, unless the roght of retention rests on claims of the customer from the same contractual relationshop with CE-CON.
XI. Confidentiality; Data Protection
1. The parties shall protect all information and documents, which are legally protected or contain business or business secrets or which are described as confidential (hereinafter: “Confidential Information”). The customer undertakes to use Confidential Information only for the purposes of the contract concluded with CE-CON and not to circucate it among or otherwise disclose it to third parties without the prior express written consent of CE-CON.
2. The customer is obliged to protect Confidential Information against access by third parties. The customer is obligred to secure from its employees the same obligations to protect Confidantial Information. The customer shall notify CE-CON without delay in writing if it acquires knowledge of an impending or existing breach of the confidentiality agreement or has suspicions to that effect.
3. The obligation to protect Confidential Information shall cease to apply if the customer can prove that
- this Confidential Information was already known to it prior to the disclosure of this information by CE-CON;
- he has legitimately received this Confidential Information from third parties without imposition of a confidentiality obligation and without it having any evidence that the third parties are in breach of confidentiality obligations imposed on these third parties;
- the Confitdential Informatino is generally known or has become generally known without breaching this confidentiality obligation;
- this Confidential Information was or is developed by the customer independently of its dislosure by CE-CON.
4. CE-CON reserves all rights to the Confidential Information (including copyrights, the right to register industrial property rights and patents, utility models, topography rights, design, brands) and rights of ownership to the items made available and containing the Confidential Information (papers, disks etc.). Notwithstanding the rights transferred in this software license agreement, in no case shall rights of ownership, license, reproduction, use or other rights be granted to the customer for Confidential Information of CE-CON, regardless of wether such information is covered by protective rights or not.
5. At the request of CE-CON, the customer shall without delay return all Confidential Information received from CE-CON. An exception applies for copies that must be archived in fulfilment of binding statutory requirements. All Confidential Information present on computers shall be deleted upon request.
6. The Confidentiality obligation shall apply for three years after the end of the contract
XII. Final Provisions
1. The customer is hereby informed that CE-CON will collect, store and process its data to the extend that is necessary to complete the contract and pursuant to applicable data protection laws and regulations, and that this data will be passed to third parties where required in order to fulfil CE-CON’s obligations under this contract.
2. CE-CON shall be entitled to amend the contents of these GTC with the customer’s consent, provided the changes, while taking CE-CON’s interests into account, are reasonable for the customer. Agreements to the customer has not objected to the change within six weeks of receipt of the change notice. CE-CON shall be obliged to inform the customer via change notive of the consequences of a failure to object.
3. CE-CON may assign its rights under this contract to one or more third parties.
4. The customer is not entitled to transfer this agreement as a whole or individual rights and obligations to third parties or to have it exercised by a third party.
5. The law of the State of Delaware shall govern the interpretation of this contract and the application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
6. The place of performance for the obligations under this contractual relationship is the domicile of CE-CON in Wilmington, Delaware.
7. The parties agree that any dispute, controversy or claim arising out of this Agreement shall be sttled by arbitration in the State of Delaware, by three arbitrators, one appointed by the customer, one appointed by CE-CON, and the third by the other two arbitrators, pursuant to the rules of the American Arbitration Association. The decision of the arbitrators shall be final and binding upon the parties. Costs of the arbitration shall be shared equally by the parties, unless the arbitrators determine that such costs shall be otherwise assessed.
8. Should individual provisions of these General Terms and Conditions of Business be or become invalid, the effectiveness of the other provisions shall remain unaffected.
9. The warranties set forth herein are in lieu of all other warranties, expressed, statutory or implied, all of which are hereby disclaimed and excluded by CE-CON, including without limitation any warranty of merchantability or use and all obligations or liabilities on the part of CE-CON for damages arising out of or in connection with the use, repair, or performance of the product. The sole and exclusive remedies for breach of any and all warranties and the sole remedies for CE-CON’s liability of any kind (including liability for negligence) with respect to any product or service covered by this warranty shall be limited to, at CE-CON’s sole discretion, repair or replacement of such product or CE-CON’s refund of fees collected for such service. In no event shall CE-CON’s liability of any kind include any special, indirect, incidental, or consequential losses or damages, even if CE-CON shall have been advised of the possibility of such potential loss or damage.
10. Warning: Severe injury or death will result if CE-CON’s products are misapplied, misinstalled, or misused. Read all installation manuals and comply with applicable regulations, codes, and standards regarding proper application, installation, and use of CE-CON’s products.
General Terms and Conditions
of CE-CON Safety Inc. – 300 Delaware Avenue, Suite 2110, Wilmington, DE 19801, USA
1st March 2020
I. Scope and contract
1. CE-CON Safety Inc. (hereinafter referred to as ``CE-CON``) offers its customers consulting and training services relating to machine and workplace safety, in particular with regard to the CE marking and the CE certification procedure based on ISO:12100.
2. These General Terms and Conditions (hereinafter referred to as „GTC“) shall apply to all current and, by way of blanket agreement, also to all future business relationships between CE-CON and the customer regarding the services offered by CE-CON in accordance with Section II of these GTC, without CE-CON needing to refer the customer to the GTC in each specific case, unless other GTC of CE-CON have been incorporated into the future contracts.
3. The consulting and training services of CE-CON listed in No. 1 are based exclusively on these General Terms and Conditions. The terms and conditions also apply to all future business relationships, even if they are not expressly agreed again. The inclusion of general terms and conditions of a customer, which are contrary to these terms and conditions, is already contradicted.
4. The currently valid General Terms and Conditions can be accessed and printed at www.ce-con.de/en/company/download-centre.
5. The presentation of services on the website of CE-CON does not constitute a binding application for the conclusion of a contract. Upon request, CE-CON will provide the customer with a non-binding offer for the services requested by the customer. This is an invitation to the customer to submit to CE-CON a binding offer for the conclusion of the terms and conditions contained therein and including the terms and conditions herein. A contract for the services is only concluded when CE-CON expressly accepts the offer of the customer or begins to provide the service.
II. Formation of contract
1. All quotations by CE-CON are always non-binding. Customer orders submitted to CE-CON may be accepted by CE-CON within weeks unless otherwise indicated in the customer’s order.
2. Acceptance by CE-CON may be declared in writing (including by telefax or e-mail) in the form of the order confirmation. In the absence of any other written agreements, the written order confirmation of CE-CON shall define CE-CON’s performance obligations.
3. There are no verbal ancillary agreements at the time of conclusion of the contract. Written individual agreements (including ancillary agreements, supplements and amendments to these GTC) expressly reached between the customer and CE-CON on an ad hoc basis shall always take precedence over these GTC, to the extent that they have been reached after the conclusion of the contract. A written contract or – in its absence – written confirmation to the customer by CE-CON shall be decisive with regard to the content of such individual agreements.
4. Between the order date and the date of performance by CE-CON, should there be any substantial increase in the price of raw materials, wages, taxes, cost increases resulting from changes in laws or provisions which would demonstrably and substantially affect the calculation on which the quotation was based, CE-CON shall be entitled to increase the price by an appropriate amount.
5. CE-CON reserves the right to make reasonable changes to form, color and/or weight. Compliance with technical data and other information/details from catalogues, printed materials, parts lists and/or drawings/ sketches and similar shall only be confirmed insofar as specific data, measurements or details are expressly listed in the technical description included with the quotation. A general reference to documents or drawings shall be deemed only to confirm the function.
6. If fulfilment of the work is dependent on the delivery of goods by a supplier of CE-CON, it shall be subject to the proper and timely delivery on the part of our suppliers; CE-CON shall therefore be released from the performance obligation to that extent that CE-CON does not receive supplies from its supplier through no fault of its own, even though CE-CON has previously concluded a supply agreement to that effect with the supplier. CE-CON shall notify the customer without delay that the supplier has failed to supply CE-CON, that CE-CON therefore withdraws from the contract and the consideration – where already paid by the customer – will be refunded without delay.
7. CE-CON reserves all intellectual property rights and copyrights on illustrations, drawings, drafts, models, samples, calculations, estimates and any other documents and objects provided by CE-CON, and such items shall not be made available to third parties by customer without express prior written agreement from CE-CON. Such information shall not be disclosed to third parties without express written agreement from CE-CON. Items XVI. to XVII. of these GTC shall apply for software.
8. The quotation shall be based on the condition of the machine/system as indicated to CE-CON by the customer. CE-CON shall assume that no defects or damage are present over and above usual wear and tear. CE-CON shall notify the customer of more extensive damage or defects identified while performing the work. CE-CON does not warrant services.
III. Subsequent change to the agreed scope of work
CE-CON and the customer shall each be entitled to apply in writing for the agreed scope of work to be amended. CE-CON and the customer shall examine the feasibility of this change following receipt of an application for changes. The outcome of this examination shall be indicated to the opposite party without delay and in writing. CE-CON shall be entitled to invoice the customer for the work, incurred as soon as an application for changes necessitates an extensive, labor-intensive examination adjustments required for such an examination or for a change to the agreed scope of work shall be set forth in a supplementary agreement.
IV. Supplementary Quotation
Where CE-CON considers it necessary, the customer shall be given a supplementary quotation. The scope and prices of the additional performance shall be agreed separately by CE-CON and the customer in the supplementary quotation. The costs of materials stated in the quotation of work shall only apply in the event that CE-CON is commissioned with the work stated there, for the quoted scope.
V. Services of CE-CON
CE-CON provides the following services to the customer in accordance with these GTC, the respective offer and the service package chosen by the customer.
1. CE-CON creates concepts, documentation, requirement catalogs, assessments and reports of safety assessments and analyzes as well as interpretations of technical guidelines and standards as well as rules of their application.
2. CE-CON checks all types of machinery and technical equipment for compliance with legal safety standards and provides technical solutions.
3. CE-CON fully supports the CE marking and the CE certification process of machinery and equipment.
4. CE-CON advises on matters of occupational safety by assessing organizational issues and environmental influences as well as by assessing the expertise of individuals and companies.
5. CE-CON takes on project management and coordination tasks.
6. CE-CON conducts events, trainings and seminars.
VI. Special regulations on performance results according to sections V. 1 to 4
1. CE-CON provides the services in English. If translations into other languages are required, this is a special service of CE-CON.
2. The acceptance of the performance results in accordance with clauses V. 1 to 4 of these GTC shall be granted within the framework of the handover if there are no material defects. The following categorization provides a clue for the existence of faults:
Fault category Description Example
Significant faults. Larger parts / sections are faulty / useless. They contain incorrect statements regarding material content. Essential aspects were not considered as agreed.
The content contains factual errors or contradictions in essential statements.
Marginally faults The document contains individual statements to be improved or supplemented. However, this does not affect the overall statement. The document contains individual statements to be amended or supplemented. However, this does not affect the overall message.
3. CE-CON grants the customer the simple, temporally and spatially unlimited, non-transferable right to use the work results resulting from the activities of CE-CON for the contractually agreed purpose. However, the right of use arises only with the complete settlement of all claims from the current business relationship. CE-CON is to be referred to as the author according to the specifications of CE-CON.
VII. Special regulations regarding training according to V.1.; 5. to 6.
1. Standard training / standard workshops (workshop below)
1.1. The training objective and the learning content result from the description of the workshop booked by the customer.
1.2. CE-CON and the training staff it employs are not subject to instructions from the customer with regard to the performance of activities and the organization of working time.
1.3. CE-CON is committed to meeting agreed deadlines. Should CE-CON delay or anticipate delays, it will immediately inform the customer of the extent and duration of the resulting or anticipated delays. In this case, CE-CON must take the appropriate measures in consultation with the customer in order to carry out its tasks on time.
1.4. If CE-CON can not hold the workshop on the agreed dates due to force majeure, illness, accident or any other non-culpable hindrance, it is obliged to inform the customer immediately. CE-CON and the customer will coordinate the further procedure together.
1.5. CE-CON will set a minimum number of participants for each workshop. If this minimum number of participants is not reached, CE-CON is entitled to cancel the workshop and to withdraw from the contract concluded via the workshop. CE-CON will declare the withdrawal to the customer in due time before the agreed date. Mutual contractual claims do not exist in the case of such a withdrawal.
2. Customized training
2.1. The training objective and the learning contents are created by CE-CON after consultation with the customer.
2.2. Moreover, the regulations are 1.2 to 1.4 application under paragraph 1.
3. Webinars; E-Learning
3.1. CE-CON also offers webinars and e-learning units. The learning contents result from the description of the respective webinar booked by the customer or the e-learning unit.
3.2. Moreover, the regulations are 1.2 to 1.5 application under paragraph 1.
VIII. Execution of orders
1. Orders shall be executed on the basis of the best available science and technology.
2. CE-CON shall have sole authority to issue instructions to its own employees.
3. CE-CON shall be entitled to use third-party services for the execution of orders. However CE-CON shall always remain directly responsible to the customer itself.
IX. Duty of cooperation of the customer
1. General participation services of the customer
1.1. The customer will name a contact person for CE-CON with an e-mail address who is authorized and able to make all decisions under this contract and to communicate to CE-CON.
1.2. The customer shall ensure that any assistance necessary for the provision of the agreed service, in particular necessary documents, are provided in good time, completely and free of charge for CE-CON by the customer or his employees.
1.3. All services to be performed by the customer are a prerequisite for the contractual performance of CE-CON within the contractually agreed deadlines. If the customer does not provide these services and CE-CON incurs additional expenses or additional costs for this reason, CE-CON shall be entitled to charge the customer for these additional expenses or additional costs.
2. Special contribution of the customer
2.1. The customer shall provide CE-CON with adequate access to its operating rooms and machines, as appropriate or at the discretion of CE-CON.
2.2. The customer shall also participate in the execution of the order in the manner required.
2.3. Unless it is expressly stated that CE-CON assumes responsibility for project management and coordination, the customer is responsible for project organization, planning and project reporting. The project manager of the customer is responsible for the professional, on-time and budget-oriented realization of the project. The project manager of CE-CON will support the customer's project manager. He is also responsible for the management of the project team of CE-CON employed assistants in technical and disciplinary terms, regardless of place of performance.
2.4. If the customer fails to fulfil its duties pursuant to Items under IX. of these GTC, CE-CON shall be entitled to set the customer an appropriate deadline to comply with its duty to cooperate and present the declaration that CE-CON shall terminate the contract without further liability to the customer if the action has not been taken before the deadline has passed. The contract shall be considered cancelled if the deadline passes without the customer complying with the duty to cooperate.
2.5. If the customer does not meet its obligations pursuant to Items under IX. of these GTC, or fails to do so in a timely manner, and this leads to delays and/or additional work, CE-CON shall be entitled to demand compensation for the resulting additional outlay.
X. Prices, billing and payment terms
1. The customer is obliged to pay the agreed remuneration to CE-CON on time.
2. If compensation is arranged according to expenditure, a monthly billing on an hourly basis is made at the hourly rate agreed between the parties.
3. The customer is obliged to cover travel expenses, e.g. transport, accommodation and travel-time incurred by CE-CON under this contract after settlement by CE-CON.
4. All agreed prices are net and are exclusive of the applicable sales tax.
5. Unless otherwise agreed, CE-CON will issue an invoice for the previous month to the customer on the end of each month. The due date for payment of the agreed remuneration results from the payment periods specified in the invoice. If a payment period is not specified, the amount without deductions is due immediately.
6. In the event of late payment, CE-CON is entitled to charge the customer interest in the amount of 9 percentage points above the base rate. For each reminder sent after the default has occurred, the customer will be charged a reminder fee of $ 3,00, unless a lower or higher damage is proven in each individual case.
7. An offsetting of the customer's liabilities from this contract is only permitted with claims against CE-CON, whose existence has been legally adjudicated or which have been expressly acknowledged or confirmed by CE-CON by written declaration.
1. Work shall be accepted by the customer as soon as CE-CON has indicated that it meets the contractually agreed specifications. The customer shall not be entitled to decline acceptance for merely negligible differences. This shall not affect the customer’s entitlement to have defects rectified with the scope of these provisions.
2. At acceptance, a report to be signed by both contracting parties shall be prepared, to confirm that the agreed specifications have been met (“operational transfer report”).
3. The commissioning or productive use of the work or of stages of the work in normal operations shall be deemed to constitute acceptance.
XII. Preliminary acceptance/Final acceptance/ Special acceptance
1. Preliminary acceptance, final acceptance and/or special acceptance shall be conducted on the basis of sperate written agreements and shall be paid for separately, unless explicitly part of the agreed scope of performance.
2. Any remuneration pursuant to Item XII.1. of these GTC shall be based on CE-CON’s current scale of charges for daily time worked, waiting times and other costs. The customer may request to see CE-CON’s current scale of charges at any time.
XIII. Default by the customer
1. If the customer fails to timely provide its acceptance, the risk of accidental loss or accidental deterioration of the work shall pass to the customer at the point at which acceptance was delayed.
2. If the customer should also default on payment, e.g. through refusing acceptance, CE-CON shall be entitled to claim for any loss incurred by CE-CON, including any additional expenses.
3. If the start and/or progress of the agreed work result in disassembly/reassembly or commissioning for reasons outside CE-CON’s sphere of responsibility, any supplementary costs incurred shall be charged for additional on production of evidence. Agreed performance deadlines shall be adjusted if necessary.
4. CE-CON shall charge for performance that is required pursuant to Item XIII.3. of these GTC on the basis of the scale of charges for daily time worked, waiting times and other costs. The customer may review this scale of charges at CE-CON at any time.
XIV. Delivery time
1. If CE-CON specifies a period for the rendering of performance (completion time), such time is conditioned on the assumption that all technical queries have been clarified and the customer’s obligations have been met in a timely and proper manner. In particular this shall include any documents to be obtained or produced by the customer, such as drawings, descriptions, any permits or approvals to be submitted by the customer and any agreed prepayments credited to CE-CON’s account.
2. The completion time shall be extended appropriately in the event of any unforeseen events beyond CE-CON’s control, insofar as such circumstances can be shown to affect the completion of the work. This shall also apply when such events occur at one of CE-CON’s subcontractors. In particular this shall apply in the event of difficulties arising from industrial action, in particular strikes and lockouts. Performance delays resulting from the aforementioned circumstances shall not be attributable to CE-CON even if they arise during an existing delay. CE-CON shall notify the customer of such difficulties as soon as possible, indicating start and end dates.
XV. Delayed and impossibility of performance by CE-CON
1. The customer may withdraw from the contract in the event of delayed or impossibility of performance by CE-CON only if the delay or impossibility results directly from CE-CON’s negligence. The customer may not withdraw before the due date of performance, nor in the event of merely immaterial dereliction of duty by CE-CON. Finally, withdrawal is excluded if the customer is solely or overwhelmingly responsible for the circumstances that would entitle it to withdraw, or if circumstances for which CE-CON is not responsible arise during the customer’s default of acceptance.
2. The customer’s right to withdraw requires that the customer shall have first given CE-CON in writing a suitable deadline of at least 2 weeks to fulfil the contractually due work, stating expressly that it withdraws from the contract if that deadline is not met (setting of deadline with warning of rejection of performance). After this deadline has passed, the customer is obliged to declare, at the request of CE-CON, whether it still insists on the work being performed or withdraws from the contract. If the customer does not make any such declaration within a suitable period set by CE-CON, the customer shall no longer be entitled to decline the work or withdraw; it may merely accept the work.
3. Setting of deadline with warning of rejection of performance may only be dispensed with if CE-CON seriously and definitively refuses the contractually due work or in the event of special circumstances that justify immediate withdrawal, after weighing the interests of both parties.
4. The entitlement to compensation or reimbursement of expenses from default or impossibility shall be subject to Item XVIII. of these GTC.
XVI. Passage of risk
1. If CE-CON performs assembly work at the customer’s facility, the passage of risk shall take place upon acceptance and signing of the operational transfer report at the customer.
2. The customer shall bear the risk of accidental loss and accidental deterioration of the work if the customer fails to timely provide notice of acceptance.
3. Insofar as CE-CON contractually agreed to assume the shipping costs, delivery or installation of hardware and/or software relating to the subject matter of the agreement, this shall not affect the above clauses regarding transfer of risk.
1. Claims for material defects and defects of title must be brought within 12 months of the date of acceptance of the work. For claims for injury to life, limb or health caused by a defect for which CE-CON is responsible, or if the defect arises from intentional or gross negligence by CE-CON, or for product liability claims, the statutory limitation periods shall apply. All implied warranties are expressly excluded.
2. If the customer demands remedial action within the limitation period (cf. Item XVII.1. of these GTC), at the choice of CE-CON the defects shall be rectified or the work repeated at no charge, provided the customer proves that the defect was already present upon the passage of risk.
3. Claims for defects shall not be made for merely negligible differences compared to the agreed properties, for only negligible impairment of usability, for natural wear or for damage occurring after the passage of risk due to incorrect or negligent handling, excessive loading, unsuitable operating materials or exceptional external factors that are not presupposed by the contract. Changes carried out by the customer or by third parties which is not authorized by CE-CON shall void CE-CON’s warranty obligations.
4. CE-CON shall in the first instance be granted an opportunity for remedial action within an appropriate period. If remedial action fails, notwithstanding any claims for compensation or for the reimbursement of expenses pursuant to Item XVIII. of these GTC, the customer may withdraw from the contract, or reduce the remuneration.
5. CE-CON shall not be obliged to take remedial action if such action requires excessive costs.
6. If the customer’s notice of defect was issued without basis in fact, CE-CON shall be entitled to demand reimbursement of expenses incurred by it from the customer.
7. CE-CON shall have no warranty liability where components other than those manufactured or specified by CE-CON have been built into the delivery item, at the customer’s request. The customer shall be responsible for proving that such a modification did not cause the defect on the delivery item.
8. CE-CON shall not be liable for any installation work carried out by the customer itself. The burden of proof that the installation is free from defects shall lie with the customer.
9. Service descriptions by CE-CON constitute merely details of the product’s composition, not a promise or guarantee. Public statements, promotions or advertisements represent neither details of the product’s composition in accordance with the terms of the contract nor a promise or guarantee.
10. Should the customer receive defective installation instructions, CE-CON’s sole obligation shall be to supply fault-free installation instructions, if the fault in the installation instructions can lead to proper installation.
11. The customer shall be responsible for proving that it has not taken any action itself to correct the defect.
12. The customer shall be obliged to document both the defect and any resulting damage, notwithstanding the aforementioned provisions, in accordance with generally accepted technical standards.
13. For claims of compensation, or for the reimbursement of expenses due to defects, Item XVIII. of these GTC shall moreover apply. All further claims of the customer or claims other than those covered by Item XVII. of these GTC in respect of CE-CON and its agents on grounds of a material defect are excluded.
1. CE-CON shall have no liability to the customer unless the customer can show that show that it has complied with the operating instructions when using the subject matter of the agreement. The burden of proof shall be borne by the customer.
2. Unless otherwise agreed in these provisions, all compensation claims by the customer for losses of any kind, including for reimbursement of expenses and indirect losses, are excluded. This applies in particular to claims for all breaches of obligations resulting from the contractual relationship as well as from personal injury. The above exclusion of liability shall also be applicable for compensations claims by the customer against CE-CON upon termination of the contract due to late performance (withdrawal) and in the event of impossibility of performance by CE-CON as a result of its ordinary negligence. The exclusion of liability shall also apply if CE-CON has used subcontractors or vicarious agents.
3. Notwithstanding Item XVIII.2. of these GTC, CE-CON shall be liable to the customer only – including if CE-CON has used senior employees or subcontractors and vicarious agents – if:
a) there is gross negligence or willful misconduct on the part of CE-CON;
b) CE-CON has fraudulently concealed a defect or has expressly assumed a warranty for the subject of the claim;
c) injury to life, limb or health has been culpably
d) caused by CE-CON; or
e) CE-CON has breached a material contractual obligation that jeopardizes the achievement of the purpose of the contract (“material contractual obligations”).
4. In the event of a breach of material contractual obligation, the liability of CE-CON shall be limited in scope to reimbursement of the foreseeable losses that typically occur.
5. The exclusion of liability shall not be applicable in respect of claims under product liability law. The aforementioned provisions do not entail a change in the burden of proof to the disadvantage of the customer.
1. The documents, knowledge and experience provided to the customer may only be used for the purposes of this contract and not made available to third parties, unless they are intended to be made accessible to third parties. Third parties are not the auxiliary persons involved in carrying out the contractual relationship, such as freelancers, subcontractors etc.
2. The customer undertakes for each case of culpable violation of the obligations of Item XIX.1. to pay a reasonable contractual penalty to CE-CON. The amount of the contractual penalty shall be determined by CE-CON in its reasonable discretion and shall be reviewed by the competent court in case of dispute.
3. Incidentally, the contracting parties undertake to treat as confidential all business and business policy information and findings of the other contracting party arising in connection with the execution of this contract and not to disclose them to third parties without the prior consent of the other contracting party, as well as to their employees and vicarious agents impose. This does not apply if information and findings are generally known or were already known to the other contracting party at the time of disclosure. This obligation continues to apply after termination of the contractual relationship.
XX. Data protection
The parties shall only process or use personal data of the other contracting party for contractually agreed purposes, in compliance with applicable law.
1. Inventions that are made jointly by employees of CE-CON and the customer during execution of an order, as well as protective rights granted over these, shall be the joint property of both parties.
2. Inventions that are made by employees of CE-CON during execution of an order, together with protective rights granted over these, shall be the property of CE-CON. Inventions that are made by employees of the customer during execution of an order, together with protective rights granted over these, shall be the property of the customer.
3. The granting of licenses to inventions within the meaning of Items XXI.1. and XXI.2., and the terms of such licenses shall be the subject of a separate written agreement.
XXII. Results of work
1. The transfer of ownership of and rights of use to all work product achieved within the scope of performance, as agreed in the quotation and known to the customer, such as documentation, reports, planning documents, evaluations, drawings, program material and similar, shall require a written agreement. CE-CON shall always reserve a free and non-exclusive right of use to its work product, and to prepare derivative products therefrom, for research and teaching purposes.
2. CE-CON shall have no liability if technical documents delivered to it by the customer or on its behalf are in breach of existing copyrights, industrial property rights or other third-party rights. The customer shall indemnify and hold CE-CON harmless if the rights of third parties are violated by execution of the customer’s order.
1. The customer may terminate the contract at any time up until completion of the work. In the event of termination by the customer, CE-CON shall be entitled to demand the agreed remuneration pursuant to Item X. of these GTC, after deduction of the expenses saved by CE-CON as a result of the cancellation of the contract or the income from the redeployment of its employees or the potential income that it willfully neglects to earn (deductible amount). CE-CON shall be entitled to 10 % of the remuneration agreed pursuant to Item X. of these GTC for the portion of the work not yet performed. The customer shall be entitled to prove that remuneration should be lower on the basis of a deductible amount exceeding 90 % of the agreed remuneration. However CE-CON shall always be entitled to 5 % of the remuneration agreed pursuant to Item X. of these GTC for the portion of the work not yet performed.
2. The contract may be terminated by either party for cause at any time.
3. If the contract is terminated by the customer for cause and termination is for reasons that are the responsibility of CE-CON, CE-CON shall only be entitled to payment for performance already rendered to the extent that it is usable for the customer.
4. Termination must always be pursuant to written notice.
XXIV. Handover of documents and articles, right of retention
1. Once an order is complete, the customer may demand handover of documents and articles entrusted to CE-CON. CE-CON may refuse handover until its entitlements under the contract have been satisfied, provided the retention of individual documents and articles would not be contrary to the principle of good faith in the circumstances, in particular if the amounts owed are relatively small.
2. CE-CON may make and retain transcripts or copies of documents that it hands back to the customer where this is necessary for CE-CON to fulfil statutory obligations to keep archives.
XXV. Special right of termination/Embargo regulations/EU anti-terror regulations
1. Insofar as contractual agreements between CE-CON and the customer mean that CE-CON’s supply obligations and the customer’s payment obligations are in violation of binding national as well as international regulations (e.g. export and embargo regulations of the USA, confederations of states as the European Union or other states, in particular Germany), CE-CON shall be entitled to terminate the contract.
2. In this special case the customer shall not be entitled to compensation.
3. It is the responsibility of the customer to be aware of any relevant statutory regulations which could make it impossible for CE-Con to fulfil the contract.
XXVI. Object code, rights to the software
1. If CE-CON produces software for the customer under a contract, the following provisions shall apply to its use. Source code shall not be the subject of any transfer of rights and CE-Con reserves all ownership rights thereto. At the request of the customer, an additional agreement such as an escrow agreement on the source code may be included.
2. The customer shall be entitled to use the software produced solely for it for its own purposes as contractually agreed with CE-CON, following payment in full of the agreed sum. Use free of charge for test purposes prior to purchase shall be permitted.
3. To the extent that rights are not expressly granted to the customer in these GTC, all rights to the software created by CE-CON under a contract for work and to all copies made by the customer – in particular copyright, the rights to inventions, data, samples, models, drafts and expertise as well as other technical protective rights – shall remain exclusively with CE-CON or a manufacturer of third-party software. The same applies to any editing of the software by the customer. This shall not affect the customer’s ownership of the respective data carriers supplied to it. For parameterization or adaption of CE-CON standard software, the GTC for the sale of software products shall apply.
XXVII. Decompilation and modification of the software by the customer
The customer shall not be entitled to decompile the software into the source code or transfer it into other forms or into other programming languages, edit or rework the software. The customer shall not remove any alphanumeric identifiers on the data carrier; if the customer is entitled to make copies, the alphanumeric identifiers shall be copied verbatim.
XXVIII. Concluding provisions
1. The place of performance is the location of the CE-CON subsidiary that renders performance.
2. The law of the State Delaware shall govern this contract, unless otherwise agreed.
3. The parties agree that any dispute, controversy or claim arising out of this Agreement shall be settled by arbitration in the State of Delaware, by three arbitrators, one appointed by the customer, one appointed by CE-CON and the third by the other two arbitrators, pursuant to the rules of the American Arbitration Association. The decision of the arbitrators shall be final and binding upon the parties. Costs of the arbitration shall be shared equally by the parties, unless the arbitrators determine that such costs shall be otherwise assessed.
4. The warranties set forth herein are in lieu all other warranties, expressed, statutory or implied, all of which are hereby disclaimed and excluded by CE-CON, including without limitation any warranty of merchantability of fitness for a particular purpose of use and all obligations or liabilities on the part of CE-CON for damages arising out of or in connection with the use, repair, or performance of the product. The sole and exclusive remedies for breach of any and all warranties and the sole remedies for CE-CON’s liability of any kind (including liability for negligence) with respect to any product or service covered by this warranty shall be limited to, at CE-CON’s sole discretion, repair or replacement of such product or CE-CON’s refund of fees collected for such service. In no event shall CE-CON’s liability of any kind include any special, indirect, incidental, or consequential losses or damages, even if CE-CON shall have been advised of the possibility of such potential loss or damage.
5. Warning: Severe injury or death will result if CE-CON’s products are misapplied, misinstalled, or misused. Read all installation manuals and comply with applicable regulations, codes, and standards regarding proper application, installation, and use of CE-CON’s products.