• Ts&Cs

Ts&Cs

Terms and Conditions of the companies of the gds group gds group

Terms and conditions of the companies of the gds group (hereinafter gds) for products and services in the area of technical documentation


§ 1 General information

(1)
Only these Terms and Conditions shall apply to the contracts entered into with gds concerning products and services, in particular technical documentation, language services, as well as software. For regular business relationships, these Terms and Conditions shall also apply for all future business transactions with the customer.

(2)
The customer's terms and conditions shall not apply, even if gds does not object to them in the specific case. The same shall also apply if gds shall, without reservation, accept and/or execute purchase orders with full knowledge of conflicting or deviating conditions of the customer.

(3)
These Terms and Conditions shall only be valid vis-à-vis entrepreneurs as defined in § 14 BGB (German Civil Code), and vis-à-vis legal persons under public law or a special fund under public law.

§ 2 Offer and entering into a contract

(1)
All offers from gds shall be non-binding and without obligation.

(2)
The written purchase order of the customer shall apply as a binding offer, if nothing to the contrary is specified in the purchase order or in other agreements.

(3)
gds shall be entitled to accept offers of the customer within two weeks after they have been received. There shall be no contract until gds has confirmed the order in writing.

(4)
Assumption of a guarantee on the part of gds shall require an express and written declaration to this effect.

§ 3 Remuneration

(1)
gds shall be remunerated based on gds's price lists, which will be unilaterally amended appropriately from time to time at gds's discretion. The price lists applicable at the time the purchase order is sent shall be authoritative.

(2)
Our prices are always exclusive of the statutory value-added tax.

(3)
Invoices from gds shall be due and payable 30 days after the invoice date, without deduction.

(4)
Unless deviating agreements have been made or binding payment dates have been specified in writing, even without reminder, the customer shall be in default of payment within 31 days after the invoice date. In such a case gds shall charge the customer interest payable after the due date in the amount of 5% above the respective base rate.

(5)
In the case of default on the part of the customer, or if there is reasonable doubt concerning the creditworthiness of the customer, gds shall be entitled, without prejudice to any other statutory regulations, to discontinue current orders, or alternatively to demand prepayments or appropriate securities.

(6)
If the customer is in default of payment to gds, then incoming payments of the customer shall first be applied to the customers older debts. The customer shall be appropriately notified of the type of offsetting that occurs.

§ 4 Contact persons

(1)
When a contract is entered into, the customer shall be obligated to provide to gds the names of two contact persons.

(2)
The contact persons named when the contract is entered into shall each be considered, relative to gds, as authorized to respond to questions that arise in conjunction with the goods/services with binding affect and to make decisions in this regard, until the customer appoints a new contact person. The right of the customer to revoke the authorization of a contact person for cause with immediate effect shall remain hereby unaffected.

§ 5 Participatory obligations on the part of the customer

(1)
Participatory obligations expressly agreed between the parties shall be primary obligations. The agreed locations and dates for the participatory obligations shall be binding for the customer.

(2)
If for the delivery/service a participatory performance on the part of the customer is required, and this does not occur within the agreed period, then the delivery/service dates for gds specified in the purchase order shall also be extended accordingly. Authoritative for calculation of the extended delivery/service periods shall be provision of the customer's participatory performance at gds, or if the customer's participatory performance must be provided at a third-party's facilities, then the sending of a written notification (including fax and email) by the customer to gds that the provision has occurred, shall be authoritative. The customer shall bear the risk of ensuring that this notification is received by gds. If there is a considerable delay in receipt, the delivery/service dates shall again be extended by the period of the delay if GDS has alerted the customer to this circumstance without delay after receipt of the written notification that includes specification of the period of delay.

(3)
More extensive legal rights on the part of gds shall remain hereby unaffected. Deviating from statutory regulations, §§ 645, 642, 643 BGB (German Civil Code) shall apply, regardless of whether the deliveries involve fungible goods or non-fungible goods (unique products).

(4)
gds shall be entitled to deliver ahead of schedule or provide services ahead of schedule, if the customer is notified of this in good time in writing and the early delivery/service is reasonable for the customer.

§ 6 Offsetting, right of retention

(1)
The offsetting on the part of the customer with counter-claims or the assertion of a right of retention on the part of the customer shall only be permitted if the claims of the customer are undisputed, acknowledged by gds or have been legally upheld.

§ 7 Retention of title

(1)
gds shall retain ownership (title) of the delivery/service (delivery item) and the rights to documentation until all payments arising from the respective relationship have been received.

(2)
In the event of breaches of obligations on the part of the customer, in particular default of payment, gds shall be entitled, after unsuccessful expiration of an appropriate grace period set for the customer, to withdraw from the contract and to demand that the delivery item be returned due to the retention of title and the withdrawal from the contract.
The statutory regulations concerning the indispensability of such a grace period shall remain hereby unaffected. After take-back of the delivery item, gds shall be entitled to utilize (i.e. sell) it. The proceeds from the utilization (sale) must then be offset against the customer's liability, less appropriate costs of sale.

(3)
In the event of attachments or other interference by third parties, the customer shall inform gds immediately in writing.

(4)
The customer shall be entitled to resell the delivery item in the proper course of business with the exception of pledging of goods or concession of pledged goods, or to dispose of the delivery object in a similar manner. However the customer at this time shall assign to gds all receivables equaling the final invoice amount (including VAT) of our claim, which shall accrue for the customer from the resale vis-à-vis his customers or third parties, regardless of whether the delivery item was resold with or without further processing. The customer shall remain entitled to collect these receivables even after said assignment. The authorization of gds to collect the receivables on its own shall remain hereby unaffected.
gds shall avail itself of this authorization if the customer does not honor his payment obligations, if the customer is in default of payment, if the customer files for bankruptcy or composition proceedings, or if the customer becomes insolvent. In these cases, gds shall be entitled to demand that the customer inform gds of the assigned receivables and the respective debtors, to provide all information necessary for collection, to hand over the necessary documents to gds, and to inform the debtors of the assignment.

(5)
A combination or processing of the delivery item by the customer shall always be undertaken for gds. If the delivery item is combined with other items that do not belong to gds, then gds shall acquire joint ownership of the new item in the ratio of the value of the delivery item to the other processed items at the time of processing. The same shall apply to the new item resulting from the combination or processing as applies to the delivery item for which title is retained.

(6)
gds shall be obligated to release the securities to which gds is entitled on the customer's request, should their value exceed the value of the secured receivables, by more than 20%.

§ 8 Delivery

(1)
If nothing to the contrary is stipulated in writing, all deliveries from gds shall be executed ex works of the respective company of the gds group in accordance with Incoterms 2010.

(2)
The delivery period shall result from the agreements of the contracting parties. If no agreement has been made, then the delivery period shall be eight weeks from the date the contract was signed, or for technical documentation, language services or similar items, eight weeks from the date the necessary documents, data or information were provided.

(3)
The prerequisite for compliance with the delivery periods on the part of gds is that all commercial and technical questions between the contracting parties must be clarified and the customer must have properly fulfilled all primary and secondary obligations for which the customer is responsible, in a timely manner. A delivery delay on the part of gds shall not exist, in spite of the agreed delivery period being exceeded, if the customer is in default of payment, in whole or in part.

(4)
Even if delivery periods have been bindingly agreed, gds shall not be in default without a written reminder from the customer.

(5)
If the failure to comply with a binding delivery period is attributed to force majeure, labor disputes, or other events for which gds is not responsible, then gds shall inform the customer of this situation and at the same time specify a new delivery period that is appropriate in light of the respective circumstances. If the performance is also not available within the new delivery period, then gds shall be entitled, in whole or in part, to withdraw from the contract; in this case gds shall without delay reimburse the customer for any applicable payment already made by the customer.
An example of non-availability of the performance in this context is delayed delivery to gds on the part of gds's suppliers with the prerequisite that gds has entered into a congruent hedging transaction. More extensive legal rights on the part of gds shall remain hereby unaffected.

(6)
Partial deliveries shall be permitted, if they are reasonable for the customer.

(7)
A right to demand compensation for damages due to exceedance of the delivery date shall only exist in accordance with § 10 (Exclusion of liability).

§ 9 Liability for defects

(1)
For the rights of the customer in the event of material defects and legal defects (claims for defects, including incorrect delivery and short delivery) the statutory regulations shall apply, if nothing to the contrary is agreed below.

(2)
If the condition of the delivery item has not been agreed, then the delivery item shall be considered free of defects if the delivery item is suitable for the use that is stipulated in the contract. In all other aspects, in supplementation to statutory regulations, the delivery item shall also be considered free of defects if it has the characteristics that the customer can expect based on the description provided by gds; in this regard it suffices if the description has been provided to the customer after the contract has been entered into (in particular together with the delivery). For public statements of third parties (e.g. advertising statements) gds shall expressly refuse to assume any liability whatsoever.

(3)
Recognizable breaches of obligations due to poor performance and obvious defects must be reported in writing, without delay, however at the latest within 12 workdays after delivery. Concealed defects must be reported in writing without delay after they are discovered. In the event of hidden defects gds shall provide warranty for a period of one year.

(4)
Claims for defects shall be excluded if the complaint is not lodged in a timely manner.

(5)
The complaint shall be subject to the written form requirement and must always contain a simple description of the respective defect. Claims for defects shall be excluded if the complaint is not submitted in writing.

(6)
If the delivery item is defective, first gds shall be entitled to chose whether gds desires to rectify the defect through repair (rectification of the defect) or replacement delivery (delivery of a defect-free item) (subsequent fulfillment). gds's right to refuse the selected type of subsequent fulfillment under the statutory conditions shall remain hereby unaffected.
gds shall be entitled to make two attempts at subsequent fulfillment. If the second subsequent fulfillment attempt fails, or if subsequent fulfillment does not occur within an appropriate period, then the customer shall be entitled to claims for damages. However the customer shall only be entitled to assert claims for damages under the prerequisites cited in § 10 (Exclusion of liability).

(7)
The expenses required for the purpose of subsequent fulfillment shall be the responsibility of gds. If, as part of the subsequent fulfillment, it turns out that the delivered item was not defective, then the customer shall be obligated to reimburse gds for the costs incurred through subsequent fulfillment.

§ 10 Exclusion and limitation of liability

(1)
Claims for damages on the part of the customer – irrespective of legal grounds – shall be excluded, particularly in the case of breach of contractual obligations, and in the case of unlawful acts. This exclusion of liability shall not apply in the case of statutory obligatory liability, particularly if claims for damages lodged against gds, its legal representatives, employees or vicarious agents are based on the following:

a) culpable injury to life, limb or health, of a person,
b) malice, intent or gross negligence,
c) culpable violation of a material contractual obligation (cardinal obligation) – e.g. faulty processing of the technical data, information and documents made available by the customer or faulty translation of a document made available by the customer – and in the event of incipient impossibility,
d) breach of other contractual obligations as stipulated in § 241 para. 2 BGB (German Civil Code), through which the customer can no longer be expected to accept the performance on the part of gds.

(2)
Claims of the customer that are based on a guarantee granted by gds or based on the German Product Liability Law shall remain unaffected by the limitation of liability cited above.

(3)
Liability on the part of gds, particularly for technical documentation and language services shall be expressly excluded, if the defect is attributed to incorrect, faulty, and/or incomplete data, documents, information, etc. provided by the customer.

(4)
If liability of gds is excluded or limited, this shall also apply for gds's legal representatives, employees and vicarious agents, as well its subcontractors.

(5)
The customer shall have no claims to recourse against gds arising from the transfer of the delivery item to a third party, if the customer has entered into agreements with the third party that extend beyond the mandatory legal claims for defects (contract penalty agreements in particular), unless gds has expressly agreed to such agreements in writing.

(6)
Due to a breach of obligation that does not consist of a defect, the customer shall only be permitted to withdraw from the contract or cancel the contract if gds is responsible for the breach of obligation. Withdrawal or cancellation must be declared in writing. In all other aspects the statutory prerequisites and legal consequences shall apply.

(7)
A reversal of the burden of proof shall not be associated with the provisions cited above.

§ 11 Rights of third parties

(1)
gds shall only be obligated to provide the contractual performance in the Federal Republic of Germany free of industrial property rights and the copyrights of third parties, unless the contracting parties have agreed on deviating provisions in writing.

(2)
If gds is responsible for infringements of protective rights of third parties, through which justified claims are lodged against the customer or gds, gds shall indemnify the customer in terms of liability within a period of one year, in that gds shall attempt either to provide appropriate use rights or provide changes in the interest of a rectification, so that there is no longer an infringement of conflicting protective rights. If the possibilities cited above are impossible for gds, or can only be fulfilled under unreasonable conditions, then the customer shall be entitled to the appropriate statutory rights.

(3)
The customer claims against gds cited above shall only apply under the prerequisites that the customer must inform gds in writing of the claims asserted by a third party or infringements of protective rights, the customer must not acknowledge or admit the violation against the third party, and that the customer must assure for gds the responsibility for all defensive measures or negotiations in the matter. In such cases the customer shall be obligated to support gds in every aspect and to refrain from acts with potential negative effects on the legal position of gds.

(4)
If the customer is responsible for the infringement of the protective rights of third parties, all liability on the part of gds shall be excluded and the customer shall indemnify gds from all claims arising therefrom.

(5)
Intellectual property of gds, in particular know-how, software, copyright and trademarks, shall remain the unrestricted property of gds and may only be used with the prior, written, and express consent of gds. The remunerations of the customer to gds expressly do not grant any indications of concession of any use rights for the intellectual property or protective rights of gds – in particular relative to software – unless the contracting parties have entered into a clear, written agreement in this regard.

§ 12 Statute of limitations

(1)
The mutual claims of the contracting parties shall be statute-barred in accordance with the statutory regulations if nothing to the contrary is specified below.

(2)
In deviation from the statutory regulations the general limitation period for claims arising from material defect and legal defect shall be one year from delivery. If an acceptance has been agreed or is legally prescribed, then the period of limitation shall commence with acceptance.

(3)
By way of derogation in the following cases the legally intended period of limitation shall apply,

  • for claims for damages arising from injury to life, limb, health, or the freedom of a person;
  • for claims for damages arising from the breach of material contractual obligations and from malicious, intentional and/or grossly negligent breach of other obligations;
  • for claims in accordance with the product liability law.

§ 13 Confidentiality

(1)
Both contracting parties shall be obligated to keep confidential information that has been communicated orally or in writing in conjunction with the delivery/service secret relative to third parties. In particular, confidential information shall be defined as all facts and circumstances that are not publicly known; examples include company secrets and trade secrets. The contracting parties shall be prohibited from using confidential information for purposes other than purposes that are associated with execution of the delivery/performance. These obligations shall cease, if the respective information becomes generally and publicly known, without the other contracting party being responsible for this circumstance.

§ 14 Supplemental provisions for technical documentation for products that are not marketed by gds

(1)
Service content
When drawing up technical documentation, gds does not check the factual and technical correctness of the documents and data provided by the customer. The factual and technical correctness of the documents delivered by gds must be checked and approved by the customer. This shall also apply for the associated translations.

(2)
Remuneration
For orders with a term of more than 30 calendar days a payment schedule with partial sub-goals shall be agreed at the beginning of the order.

(3)
Granting of rights to technical documentation
With regard to the delivered/provided technical documentation in the contractually agreed languages, the customer shall receive a simple, perpetual worldwide right of use and exploitation.

§ 15 Applicable law and place of jurisdiction

(1)
These Terms and Conditions shall be subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

(2)
The ordinary courts of the place of the registered office of the respective company of the gds shall be exclusively responsible for all disputes arising from legal relationships that are based on these Terms and Conditions.

§ 16 Final provisions

(1)
Customers with whom an ongoing business relationship exists shall be notified in writing of any amendments to these Terms and Conditions. Such amendments shall be considered as approved by the customer unless the customer objects in writing (within the specified period). With the notification of amendment gds shall be obligated to make special reference to the legal consequences. The customer must send his objection to gds within six weeks after receipt of the notification of amendment.

(2)
Amendments and supplements of contracts with gds must be in writing. This shall also apply to any waiver of the written form requirement.


Sassenberg, October 2017