General Terms and Conditions of sales and services (ALLB) of Verkehrsautomatisierung Berlin GmbH (As of 07/2018)

1.     Application, conclusion of contract

1.1  The following general terms and conditions of sales and services (ALLB) of Verkehrsautomatisierung Berlin GmbH (VAB) shall apply for all their sales and services, unless this is particularly explicitly precluded, or contrary arrangements have been made in writing. They also apply to all future deliveries, services or offers to the customer, even if these have not been separately agreed again. The customer’s general terms and conditions shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement for consent applies in every case, for example even if we unconditionally carry out the delivery / service to the customer with the knowledge of the customer's general terms and conditions.

1.2   Our offers are made without obligation. This also applies if we have provided the customer with technical documentation (e.g. drawings, plans, calculations, cost estimates), other product descriptions or documents - also in electronic form - to which we reserve ownership rights and copyrights. The order by the customer is then considered a binding contractual offer. We are then entitled to accept this contractual offer. Acceptance can either be declared in writing, e.g. by order confirmation, or by delivery of the goods or performance of the service to the customer.

1.3   The following general terms and conditions of sales and services (ALLB) of Verkehrsautomatisierung Berlin GmbH (VAB) shall apply exclusively for all their sales and services. Individual agreements made with the customer in individual cases (including collateral agreements, supplements and amendments) have priority over these terms and conditions. A written contract or our written confirmation is authoritative for the content of such agreements, subject to proof to the contrary. Contracts with the customers as well as collateral agreements, supplements and amendments to the respective contractual relationships must be in writing. The written form for the purposes of these terms and conditions is also complied with by fax and e-mail (text form). The parties to the contract shall confirm oral arrangements in writing.

2.    Remuneration and terms of payment

2.1   Remuneration is calculated according to the contractually agreed prices.

2.2   All agreed prices are net prices ex works excluding packaging and freight costs.

2.3   Cash discounts, other discounts or other concessions must be agreed separately in writing. The value added tax applicable on the day of invoicing will be indicated separately in the invoice

2.4   Packaging and freight costs are invoiced at cost price.

2.5   In the case of reasonable partial deliveries, VAB shall be entitled to invoice these partial deliveries separately. This applies in particular for orders that are made in partial deliveries on account of the scope of delivery or at the customer's request or for which the customer specifies the time of receipt of the deliveries ready for dispatch by VAB.

2.6   VAB reserves the right to adjust its prices at its reasonable discretion to the development of the costs which are relevant for the price calculation, i.e. if cost reductions or cost increases have occurred following the conclusion of the contract. A price increase may be considered and a price reduction made if, for example, due to collective wage agreements, cost increases or reductions for the procurement of energy, raw materials or other costs arise. In the event of cost increases and/or cost reductions, VAB will check to what extent the cost increases or cost reductions will not be fully or partially offset by increases or reductions in other areas. In exercising our reasonable discretion, we will choose the respective dates of the price change in such a way that cost reductions are not taken into account according to more unfavourable standards for the customer than cost increases. We will provide the customer with evidence of the corresponding cost increases/cost reductions upon request

2.7   All payments shall be made against invoice. They are due for settlement within 14 days of the invoice date without deduction. The Customer shall only be entitled to a right of retention of the remuneration if this is explicitly provided for in the delivery and service contract or if the Customer's claim is legally established or undisputed. If the Customer is in default of payment, VAB shall be entitled to demand default interest calculated on the basis of the base interest rate prevailing at the time in accordance with the statutory provisions.

2.8   If an acceptance date for the delivery has been agreed with the customer and this is not adhered to by the customer for reasons for which we are not responsible, we shall be entitled to invoice the customer for the goods before delivery. This invoice is then due for settlement within 14 days after the date of the invoice.

3.    Deliveries, services, delivery time

3.1   Deliveries and services are performed in accordance with recognized scientific and technical standards. Their scope is determined by the specifications which are the subject of the respective supply and service contracts.

3.2   Deliveries and services are rendered on the agreed dates according to the order confirmation or contract. In the event of delays in delivery, VAB shall only be liable to the extent that it is responsible for the causes.

3.3   As soon as the customer is in default of acceptance, the risk of accidental loss or accidental deterioration of the delivery passes to the customer. VAB is, however, obliged to store the delivery properly at the customer's expense.

3.4   In the case of deliveries of user software, its usability is only guaranteed if it is properly installed on the EDP systems provided for this purpose and if the installation instructions are observed and if it is operated by trained personnel. In these cases, the customer is responsible for the installation, implementation and parameterization of the software. If VAB is to assume these tasks, the parties will agree this separately.

3.5   Recording and storing customer-specific data is only included in the scope of delivery of VAB if this is agreed upon or the object of the service to be provided.

3.6   Dates and deadlines must be in writing. VABs compliance with binding deadlines and dates presupposes the timely and proper fulfilment of the customer's obligations. If the customer does not fulfil his obligations to cooperate and VAB cannot thereby complete the project or parts thereof within the agreed time, the period specified in the schedule shall be extended accordingly. §§ 642 and 643 German Civil Code shall apply.

3.7   To the extent that VAB produces or substantially changes movable objects and/or software, the parties will carry out an acceptance. In this case and insofar as acceptance is provided for certain services by law, the following shall apply:

3.7.1     As soon as VAB is ready for performance, it will inform the customer in writing of its readiness for acceptance.

3.7.2     The customer will then check the services for contractual condition. The testing period begins upon receipt of notification of readiness for acceptance by the customer and lasts for two weeks. The customer shall carry out the inspection in such a way that even those performance components which are used only irregularly or at fixed intervals, for example annually, are comprehensively tested and tested. The customer must document the inspection. If the customer fails to check and notify within the above-mentioned period, warranty for these defects shall be excluded. The same applies if such a defect becomes apparent at a later date. Section 377 HGB applies.

3.7.3     The customer shall not interrupt the inspection if insignificant defects occur and only limit it to the extent that the defects make it necessary.

3.8   With the successful end of the testing period, the service shall be deemed to have been accepted without the need for a declaration by the customer. VAB shall inform the customer of this circumstance by notifying him that the goods are ready for acceptance. The customer can only prevent automatic acceptance by written declaration that there is an obstacle to acceptance. The customer shall confirm acceptance in writing at the request of VAB.

4.    User’s obligation to cooperate

4.1   Immediately after conclusion of the contract, the customer shall appoint suitable employees who shall provide VAB with all information and documents necessary or useful for the performance of the contractually agreed services. An employee is to be named as the responsible contact person whose information on organizational and content-related questions is binding.

4.2   If work has to be repeated due to incorrect or incomplete information provided by the customer, the customer shall bear the costs for such additional work.

4.3   The customer shall ensure that competent personnel qualified to operate the equipment and programs are available during the period in which the services are handed over.

4.4   The customer shall assist VAB in fulfilling the order to the required extent at no cost. He is obliged, for example, to provide his employees with his computer/IT systems, necessary premises, as well as data and other facilities. Upon request, he shall grant VAB direct access to his systems, in particular to the software and the respective computer programs and systems.

5.    Execution

5.1   The work of VAB shall generally be carried out in VAB offices during normal business hours. However, work at the customer's premises is permissible. This requires a corresponding agreement. No fee shall be paid for the use of the customer's rooms and facilities.

5.2   VAB is entitled to use subcontractors within the scope of the performance of the contract. It will notify the customer of this.

6.    Rights of use

6.1   Upon complete payment of the remuneration owed according to the respective contract, the customer shall receive an irrevocable, non-exclusive, perpetual and non-transferable right to use the software created or delivered by VAB. The number of workstations on which this software is used can be limited when the license is issued. The software may only be used by a maximum number of natural persons at the same time corresponding to the licenses purchased by the customer. The additional use includes the installation of the software, loading into the working memory and the intended use by the customer.

6.2   Copyright, also copyright to modified or reproduced programs, remain with VAB.

6.3   The user is not permitted to reproduce supplied software for the purpose of transfer or sale. This also applies for deployment at subsidiary companies or similar associated companies. Software for the user’s own usage may only be deployed and copied within the framework agreed upon. The customer is entitled to make a back-up copy if this is necessary to secure future use. The customer shall visibly affix the note "Back-up copy" and a copyright notice of VAB to the back-up copy.

Furthermore, the customer is only entitled to decompile and duplicate the software to the extent provided for by law. However, this only applies subject to the condition that VAB has not made the necessary information available to the customer on request within a reasonable period of time.

6.4   The granting of rights to software source codes, including those in the form of copying, editing, etc., is not included in the granting of rights and must be agreed separately in writing.

6.5   If the customer uses the software to an extent that exceeds the acquired rights of use qualitatively, i.e. with regard to the type of permitted use, or quantitatively, e.g. with regard to the number of licenses acquired, he shall immediately purchase the rights of use necessary for the permitted use. If he fails to do so, VAB will assert his rights. VAB is also entitled, however, at its discretion, to demand that the customer refrain from exceeding the rights of use.

7.    Warranty and liability

7.1   The warranty period is generally 24 months. Individual agreements on the warranty period may deviate from the regular period and shall have priority. The period begins on the delivery date, but no later than the start of operational use. Operational use is available at the latest 90 days after delivery. The earlier date for the beginning of the warranty period shall apply in every case.

7.2   Any defects reported within this period shall be remedied free of charge. If the notified defect cannot be determined during an inspection, the Customer shall bear the costs of the inspection, in particular if the complaints are based on incorrect use or on the presence of other faults for which VAB is not responsible.

7.2   If the delivery and service are based on software, VAB is prepared to carry out maintenance, servicing and further development for an unlimited period of time from the time of acceptance. The customer can make use of this service within the framework of a maintenance contract to be concluded separately.

7.3   The warranty obligation and the right to program maintenance expire for programs that are changed without authorization. With regard to warranty claims, it remains the customer's right to prove that the defects are not attributable to unauthorized changes to the software. The burden of proof lies with the customer.

7.4   VAB can also fulfil its obligation to rectify defects by providing the customer with a new program version. VAB shall be entitled, at its own discretion, to remedy the defect or make a replacement delivery. VAB shall be entitled to render warranty on the Customer's premises. VAB shall also fulfil its obligation to rectify the defects by providing updates with an automatic installation routine on its homepage or via a download link and by offering the Customer telephone support to solve any installation problems that may arise.

7.5   VAB is liable in respect of damages attributable to it for intent and gross negligence in accordance with the statutory provisions.

7.6   VAB shall only be liable for minor negligence in the event of breach of essential contractual obligations. Essential contractual obligations are those whose fulfilment characterizes the contract and on which the customer may rely. In this case, the liability is limited to the amount of damages foreseeable and typical for the contract. Liability for any further consequential damages, lack of economic success, indirect damages and claims of third parties is excluded.

7.7   The limitations of liability shall not apply to claims based on intent and gross negligence, injury to life, body or health, fraudulent intent, insofar as the Product Liability Act is applied or in the case of warranty pledges.

7.8   The customer is obliged to inform VAB before conclusion of the contract in writing about special risks, atypical possibilities of damage and unusual amounts of damage.

8.    Retention of proprietary rights

VAB reserves the right to reclaim the deliveries and services as well as documentation provided to the customer if the agreed payments are not made in full.

9.    Non-disclosure, data protection

9.1   All documents marked as confidential, which employees of VAB receive from the customer for the performance of their activities, regardless of their origin, as well as all other business and trade secrets, business methods and figures, drawings and sketches, pictures and other documents that come to their knowledge in connection with the performance of the activity shall be kept secret with due diligence.

9.2   The non-disclosure obligation shall also apply after termination of the contract.

9.3   All documents or data carriers containing the above information that may be in the possession of VAB shall be handed over to the customer upon termination of the contract.

9.4   VAB can add the customer's name to a reference list for marketing purposes and disclose that a business relationship exists to him and that this contract was concluded with the customer; all other advertising references require the prior consent of the customer. The customer’s data is stored in a database. VAB processes customer data in compliance with applicable data protection standards, such as the Federal Data Protection Act and the EU General Data Protection Regulation. The customer has a right to object to the use of his data at any time. More details on data protection and the rights of people concerned are regulated in our data protection declaration.This can be found on our homepage at https://www.vaberlin.de/footer/info/informationen/datenschutz.html.

9.6   Section 9.1 applies analogously to documents provided by VAB customers. The customer must treat the documents and information confidentially and is not entitled to make such documents and information accessible to third parties. If he receives such information and documents in connection with the preparation of the contract, he is obliged to return them to us at no cost if the contract is not concluded.

10.   Choice of law and place of jurisdiction

10.1 German law shall apply exclusively with exclusion of the UN Convention on Contracts for the International Sale of Goods.

10.2 The place of jurisdiction for all disputes arising from the contractual relationship is Berlin if the customer is a merchant, a legal entity under public law or a special fund under public law. However, we are free to appeal to the court responsible for the customer's place of business.

11.   Severabilityclause

Should individual clauses of these terms and conditions be wholly or partially void or ineffective, this shall not affect the effectiveness of the remaining clauses. Instead, the statutory regulations shall apply.