General Terms and Conditions of PEAKnx GmbH
1 General - Scope
1.1 Our Terms and Conditions of Sale shall apply exclusively; we do not recognise any terms and conditions of the Customer that conflict with or deviate from our Terms and Conditions of Sale unless we have expressly agreed to their validity in text form. This shall also apply if the Customer's general terms and conditions provide that acceptance of the order is intended as unconditional acceptance of the terms and conditions of purchase. Our Terms and Conditions of Sale shall also apply if we carry out the delivery to the Customer without reservation in the knowledge that the Customer's terms and conditions conflict with or deviate from our Terms and Conditions of Sale.
1.2 All agreements made between us and the Customer for the purpose of executing this contract are set out in writing in this contract.
1.3 Our terms and conditions of sale shall apply to the entire business relationship with the Customer, including future business relationships.
2 Offer - Conclusion of contract - Offer documents
2.1 Our offers are subject to change unless they are expressly marked as binding or contain expressly binding commitments or the binding nature has otherwise been expressly agreed.
2.2 The present terms and conditions of offer and delivery are an integral part of all our offers. The offers are invitations to place orders. The customer is bound to his order as a contract application for 14 calendar days - in the case of electronic orders five working days (in each case at our registered office) - after receipt of the order by us, insofar as the Customer does not regularly also have to reckon with a later acceptance by us (§ 147 German Civil Code [BGB]). This also applies to repeat orders placed by the Customer.
2.3 A contract is only concluded - also in current business transactions - when we confirm the Customer's order in writing or in text form (i.e. also by fax or e-mail) by order confirmation. In the event of delivery or performance within the 14-day offer commitment period of the Customer (para. 2), our order confirmation can be replaced by our delivery, whereby the dispatch of the delivery is decisive. The written order confirmation is replaced by the invoice if the order is executed immediately. Contract amendments shall only become effective if they are expressly confirmed by PEAK in writing or text.
2.4 We reserve the intellectual property rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to such written documents that are designated as "confidential". The customer requires our express written consent before passing them on to third parties.
2.5 PEAK is not obliged to accept a purchase contract if orders are received on the basis of circulars and price lists.
2.6 Assurances regarding product quality shall only become part of the contract if they have been expressly confirmed in writing. Information in brochures shall only be deemed to be expressly warranted characteristics within the meaning of the law on sales if these have been expressly agreed in writing in the individual case.
3 Prices - Terms of payment
3.1 The prices according to the latest version of the PEAK price lists, the PEAKnx online shop and the repV website (to be viewed at https://www.peaknx.com/en/ or https://www.repv.de/en/) apply. Unless otherwise stated in the order confirmation, our prices shall apply "ex works", including packaging.
3.2 Statutory value-added tax is not included in our prices unless expressly stated otherwise in text or in writing. The value-added tax on the day of invoicing applies.
3.3 A cash discount deduction is generally not allowed. Anything else shall only apply if it has been expressly confirmed by us in text or in writing or has been agreed with the Customer in text or in writing.
3.4 Unless otherwise stated in the order confirmation, the net purchase price (without deduction) is due for payment within 14 days of the invoice date. The statutory rules concerning the consequences of default in payment shall apply. PEAK shall charge a dunning fee of € 3.00 with the second reminder and a dunning fee of € 6.00 from the third reminder onwards.
3.5 Should the Buyer fail to meet its payment obligations and/or other obligations arising from the general business relationship with PEAK, should it cease payment or should an application be made to open insolvency proceedings against its assets or those of its legal representatives, all of the Customer's liabilities to PEAK shall become immediately due for payment. In this case, PEAK shall be entitled to declare withdrawal from all contracts and to retrieve goods already delivered from the retention of title, as well as to demand reimbursement of all costs causally related to the withdrawal (e.g. return transport, reduction in value, etc.).
3.6 If the Customer is in arrears with a payment, PEAK shall be entitled to suspend all services to the Customer until full settlement of the claim that the Customer is in arrears with.
3.7 The Customer shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed or have been recognised by us. Furthermore, it is authorised to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.
4 Delivery time
4.1 Since PEAK is dependent on the supply of third parties for the manufacture of its goods, any delivery deadlines communicated by PEAK are only non-binding in nature. However, despite the non-binding nature of any delivery date communicated in writing, PEAK shall inform the Buyer of any anticipated changes to the delivery deadlines as soon as possible after they become known. Delivery dates and deadlines shall only be deemed binding if they are expressly marked as "binding" in writing.
4.2 Delivery and performance periods shall commence upon receipt of our order confirmation by the Customer, but not before all details of the execution of the order have been clarified and the Customer has fulfilled any further obligations incumbent upon him, in particular agreed down payments/advance payments or securities or necessary cooperation services have been provided in full. If the Customer has requested changes after placing the order and these have become effective after written or textual confirmation by PEAK, previously agreed delivery and/or performance deadlines shall lose their validity. In this case, PEAK shall communicate a new delivery and/or performance deadline with the written or textual confirmation of the change. If a new delivery and/or performance deadline for the changed delivery or service is not communicated, a reasonable delivery and/or performance deadline shall be deemed agreed.
4.3 If we are in default of delivery, the Customer must first set us a reasonable grace period for performance. If we are also in default of compliance with this deadline, claims for damages due to breach of duty, irrespective of the reason, shall only exist in accordance with the provision in § 6. The defence of non-performance of the contract shall remain reserved. We are entitled to partial performance and partial delivery.
4.4 If the Customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. These additional expenses shall amount to a flat rate without proof of 0.5% of the net contractual price of the affected service per month or part thereof, limited to a maximum of 5%. However, the parties are entitled to prove higher or lower damages. Further claims or rights remain reserved.
4.5 Provided that the requirements of para. (4) exist, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the Customer at the time at which the Customer is in default of acceptance or debtor's delay.
4.6 We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a transaction for delivery by a fixed date within the meaning of Section 286 (2) No. 4 of the German Civil Code (BGB) or Section 376 of the German Commercial Code (HGB). We shall also be liable in accordance with the statutory provisions if, as a consequence of a delay in delivery for which we are responsible, the Customer is entitled to claim that his interest in the further performance of the contract has ceased to exist. In this case, our liability for damages is limited to the foreseeable, typically occurring damage.
4.7 We shall also be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault (intent or gross negligence) on the part of our representatives or vicarious agents shall be attributed to us. If the delay in delivery is due to a grossly negligent breach of contract for which we are responsible or for which one of our representatives or vicarious agents is responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
4.8 We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation (§ 6 para. 5, p. 2); in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
4.9 Further legal claims and rights of the Customer remain reserved.
5 Shipping - Transfer of risk
5.1 Unless otherwise stated in the order confirmation, delivery "ex works" is agreed. Delivery shall be made for the account and at the risk of the Customer.
5.2 Unless the parties have expressly agreed otherwise in writing, the risk of accidental loss or accidental deterioration shall pass to the Customer when the products to be delivered are handed over to the forwarding agent, the carrier or the undertakings otherwise designated to carry out the shipment, but at the latest when they leave our works or our warehouse or our branch or the manufacturer's works.
5.3 In the absence of any other agreement, we reserve the right to choose the transport route and the means of transport in the case of agreed dispatch. However, we shall endeavour to take into account the Customer's wishes with regard to the method and route of dispatch, without the Customer having any claim to this. Any additional costs resulting from this - even in the case of agreed freight-free delivery - shall be borne by the Customer, as are the transport and insurance costs. If dispatch is delayed from the agreed time at the request or through the fault of the Customer, we shall store the goods at the expense and risk of the Customer.
5.4 If the shipment is delayed because we exercise our right of retention as a result of the Customer's default in payment in whole or in part or for any other reason for which the Customer is responsible, the risk shall pass to the Customer no later than upon receipt by the Customer of the notification of readiness for shipment and/or performance or the notification of the assertion of the right of retention.
6 Liability for defects
6.1 Claims for defects on the part of the Customer presuppose that the Customer has properly fulfilled its obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).
6.2 Insofar as claims for defects exist, we provide warranty in such a way that we rectify material and processing defects by repair in our repair centre or provide replacement of the affected parts. A claim for reimbursement of expenses such as dismantling, assembly or travel expenses is excluded in any case.
6.3 A prerequisite for the breach of duty claims is that the defect asserted is a reproducible one. If it turns out that services requested by the Customer and provided by PEAK were not necessary as a result of a breach of duty by PEAK, the Customer shall remunerate these services and reimburse PEAK for the costs incurred. PEAK shall base the calculation on its respective valid hours and travel expense rates.
6.4 If the supplementary performance fails, the Customer is entitled to demand withdrawal or reduction at its discretion.
6.5 We shall be liable in accordance with the statutory provisions if the Customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.
6.6 We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; however, even in this case, liability for damages shall be limited to the foreseeable, typically occurring damage. A material contractual obligation is an obligation the fulfilment of which makes the proper performance of the contract possible in the first place and on the observance of which the contractual partner regularly relies and may rely.
6.7 Insofar as the Customer is otherwise entitled to compensation for damage instead of performance due to a negligent breach of duty, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
6.8 Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
6.9 PEAK is not liable for damages insofar as the Customer could have prevented their occurrence through reasonable measures, in particular programme and data backup.
6.10 Unless otherwise stipulated above, liability is excluded.
6.11 The limitation period for claims for defects is 24 months, calculated from the transfer of risk. This shall not apply insofar as the law pursuant to §§ 438 para. 1 no. 2 BGB (buildings and objects for buildings), § 479 para. 1 BGB (right of recourse) and 634a BGB (construction defects) provides for longer limitation periods.
6.12 PEAK shall not assume any warranty for defects in the purchased item that are caused by accident, improper use, negligence, modification, improper installation, repair or improper testing measures by the purchaser or its agents.
6.13 In case of removed or damaged original technical markings of the delivered good(s), the Customer's claims for defects shall expire.
6.14 Unless expressly agreed otherwise in writing, the warranty for used items is limited to 1 year from the transfer of risk.
6.15 For the delivery of software, the following supplementary regulations apply to claims for defects:
- For software not produced by PEAK, the rights apparent from the respective licence conditions shall apply.
- Defects do not include product deviations in the sense of market innovations. The customer shall only be entitled to software maintenance and modification if a more extensive programme maintenance contract has been concluded.
- The duplication of PEAK software is only permitted for the production of a backup copy.
7 Total liability
7.1 Any further liability for damages than provided for in § 6 is excluded - regardless of the legal nature of the asserted claim. This applies in particular to claims for damages due to culpa in contrahendo, due to other breaches of duty or due to tortious claims for compensation for property damage in accordance with § 823 BGB.
7.2 The limitation according to para. (1) shall also apply insofar as the Customer demands reimbursement of useless expenses instead of a claim for damages.
7.3 Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
8 Retention of title
8.1 We retain title to the purchased item until receipt of all payments under the delivery contract. Until the transfer of ownership of the goods delivered by PEAK to the Buyer, the Buyer may neither pledge them nor assign them to third parties as security. In the event of conduct by the Customer in breach of the contract, in particular in the event of default in payment, we shall be entitled to take back the object of sale. Our taking back of the object of sale shall constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to realise it; the realisation proceeds shall be credited against the Customer's liabilities - less reasonable realisation costs.
8.2 In the event of seizures or other interventions by third parties, the Customer must notify us immediately in writing so that we can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action in accordance with § 771 ZPO, the Customer shall be liable for the loss incurred by us.
8.3 The customer is entitled to resell the object of sale in the ordinary course of business; however, he already now assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim, which accrue to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The Customer shall remain authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the Customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments have not been suspended. If this is the case, however, we may demand that the Customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
8.4 The processing or transformation of the object of sale by the Customer shall always be carried out for us. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other processed objects at the time of processing. In all other respects, the same shall apply to the object created by processing as to the object of sale delivered under reservation.
8.5 If the object of sale is inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other mixed objects at the time of mixing. If the mixing takes place in such a way that the Customer's item is to be regarded as the main item, it shall be deemed to be agreed that the Customer transfers co-ownership to us on a pro rata basis. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us.
8.6 The customer also assigns to us the claims to secure our claims against him which arise against a third party as a result of the connection of the object of sale with a plot of land.
8.7 We undertake to release the securities to which we are entitled at the Customer's request insofar as the realisable value of our securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released is ours.
8.8 The copyrights and rights of use and exploitation to the sold product shall remain with PEAK, irrespective of the contractually regulated delivery to the Customer. Reproduction of individual PEAK delivery parts or systems is only permitted with the written consent of PEAK.
9 Software maintenance and support services
9.1 PEAK shall provide services exclusively for PEAK products, insofar as and to the extent that these are used unchanged and in the configuration and system environment recommended by PEAK for their use at the Customer's specified business premises.
9.2 Software maintenance includes the provision of upgrades during the term of the contract (maintenance contract with costs required), whereby upgrades include further technical developments and/or functional extensions of the standard products supported within the scope of this agreement without changing the essential program-technical fundamentals (e.g. program structure, programming language) and functionalities. The programme names remain unchanged during upgrades, but the year or version number of the product changes. PEAK marks upgrades as such.
9.3 Updates and upgrades only apply to the standard product. Possible adaptations of the Customer to the products are excluded from updates and upgrades. However, they can be commissioned separately.
9.4 PEAK determines the content of upgrades and updates at its own discretion. In particular, the Customer has no claim to the inclusion of additional functionalities and programme extensions of the supported products.
9.5 Within the scope of the individual and contractual hotline advice during its general business hours, PEAK shall answer questions relating to a specific use case (the support case) concerning the supported products, the product documentation as well as the programme flow and use of the supported products within the framework of the configuration and system environment communicated by PEAK in the documentation. PEAK will inform you of the current business hours on request.
9.6 The aim of the hotline support is to enable the Customer to carry out individual use cases properly as well as to solve or circumvent problems themselves. However, a solution to the problem is not owed, nor is general instruction or training in the use of the products. Hotline support can therefore only be used by appropriately qualified employees of the Customer who are experienced in dealing with the supported products and the corresponding system environment.
9.7 Services such as training, instructions, software installations, individual form adaptations, checking of data backups and on-site support are not the subject of hotline services.
9.8 Remote support is not part of this contract. If remote services are necessary, they will be charged separately according to the valid service price list. There is no entitlement to remote support.
9.9 The customer shall appoint PEAK a specialist employee who is trained, qualified in the handling of the supported products as a contact person. He or she shall in particular ensure that the contact person or, if applicable, a third party to be consulted by the Customer can implement instructions for action, programme changes or solution steps communicated or made available by PEAK.
9.10 The customer is obliged to always use the latest version of the supported products.
9.11 The customer shall procure and maintain the technical operating environment necessary for the use of the supported products, in particular upgrades, at its own expense.
9.12 The Customer is responsible for the regular backup of his individual data. PEAK points out that a data backup is required in particular before any support or maintenance measure (e.g. before changing, adapting or replacing a programme version). The data backup must be handed over in full to PEAK within the scope of a support and maintenance request in order to enable PEAK to carry out a problem analysis. If the Customer does not release the backed-up data to PEAK, PEAK shall not be obliged to contribute to the solution of the problem.
9.13 The maintenance and/or support service comes into effect upon signature or on the agreed service date and is initially valid for 12 months (minimum term). It shall be extended by a further 12 months in each case if it is not terminated in writing by the Customer or PEAK with three months' notice prior to expiry.
9.14 The right to extraordinary termination remains unaffected.
9.15 Cancellations must be made in writing.
9.16 PEAK is entitled to change the contractually stipulated fees as follows: PEAK may, at the earliest after the end of the first contract year and no more than once per calendar year, change the fees contained in the price list with effect for existing contracts to be in line with the general price trend. If the increase in fees is more than 10%, the Customer may terminate the agreement within one month of receipt of the notice of change as of the date on which the increase in fees is to take effect.
9.17 For the agreed services, the Customer shall pay an annual fee in accordance with PEAK's currently valid general price list, plus the statutory value-added tax.
9.18 The fees are due in advance for the desired billing period. Notwithstanding any further rights, PEAK shall only be obliged to provide the services owed under this contract after receipt of the fees due for the respective billing period.
9.19 If the Customer increases the number of clients authorised to use the contractual software, the support and software maintenance scope obtained by the Customer shall be automatically increased to the same extent. PEAK is therefore entitled to invoice the fee accruing for the corresponding new number of clients according to the price list from the time the Customer uses the clients.
9.20 PEAK shall effectively deliver the notice of termination to the address specified in the contract or to the address last notified in writing by the Customer. Accordingly, it becomes effective even if delivery cannot be made to this address.
10 Export and re-export
10.1 All PEAK deliveries are subject to export authorisation in accordance with German foreign trade law, of which the Customer is responsible for obtaining knowledge.
10.2 Products and technical know-how supplied by PEAK are due to the existing licences and copyrights for distribution in the Federal Republic of Germany. Re-export individually or in system-integrated form - is subject to approval by the Customer.
11.1 Should any provision of this contract be or become invalid/void or unenforceable in whole or in part for reasons of the law of general terms and conditions pursuant to §§ 305-310 BGB, the statutory provisions shall apply.
11.2 Should any present or future provision of the contract be or become invalid/void or unenforceable in whole or in part for reasons other than the provisions concerning the law of general terms and conditions pursuant to §§ 305-310 BGB, this shall not affect the validity of the remaining provisions of this contract, unless the performance of the contract - also taking into account the following provisions - would constitute an unreasonable hardship for one party. The same shall apply if a gap requiring supplementation arises after conclusion of the contract. The validity of the remaining provisions of the contract shall be maintained under all circumstances and thus § 139 BGB shall be waived altogether.
11.3 The parties shall replace the invalid/void/unenforceable provision or gap requiring filling for reasons other than the provisions concerning the law of general terms and conditions pursuant to §§ 305-310 BGB by a valid provision which corresponds in its legal and economic content to the invalid/void/unenforceable provision and the overall purpose of the contract. § 139 BGB (partial invalidity) is expressly excluded. If the invalidity of a provision is based on a measure of performance or time (period or date) specified therein, the provision shall be reconciled with a legally permissible measure that comes closest to the original measure.
11.4 If the Buyer fails to fulfil its obligations under the purchase contract, PEAK may refuse further deliveries without prejudice to the assertion of its other rights.
11.5 The Buyer may not assign its rights to third parties without PEAK's prior written consent.
11.6 PEAK is entitled to use the assistance of third parties to fulfil its contractual obligations. PEAK's responsibility under this agreement remains unaffected.
11.7 Passwords or access numbers provided by PEAK for access to PEAK services are to be treated confidentially and appropriately secured against misuse.
11.8 If a customer falls within the personal protection scope of the Data Protection Act, he agrees to the processing of his data insofar as it is necessary for the purpose of the contract.
11.9 PEAK products or parts thereof must not be used in life-support, medical or military systems without consulting PEAK.
11.10 For software not manufactured by PEAK, the respective provisions and copyright regulations of the manufacturer shall apply.
12 Place of jurisdiction - Place of performance
12.1 If the Customer is a merchant, our place of business shall be the place of jurisdiction; however, we shall also be entitled to sue the Customer at the court of its place of residence.
12.2 The law of the Federal Republic of Germany shall apply.
12.3 Unless otherwise stated in the order confirmation, our registered office shall be the place of performance.