General terms and conditions of business
These general terms and conditions of business apply to the present business transaction (e.g. offer, purchase and/or service contract) between Y-COM and the client as well as to all related details given in brochures, price lists, advertisements etc. irrespective thereof whether these were made orally, in writing or by Internet. Changes to a concluded contract must be made in writing. Business terms and conditions deviating from these conditions are not permitted. With an order placement, the client acknowledges the validity of these conditions.
2. Offers / end of contract / changes to product
Offers are made exclusively in writing. As far as no particulars with regard to the validity of the offer are received, offers are subject to change. The client can award orders by letter, by Internet or by fax. Upon receipt, Y-COM sends written confirmation of order to the client. Y-COM retains the right to alter products (including third party products) at any time, as far as the functionality and performance of the altered products are not adversely affected.
3. Prices and terms of payment
Stated prices do not include dispatch, insurance, installation costs or taxes; these costs are calculated separately. Unless otherwise agreed, payments of the net price are to be made within 14 days. Y-COM retains the right in the case of delay of payment to hold back deliveries and/or services until full payment has been made and to require interest on arrears to the value of the legal interest rate.
4. Deliveries / right of retention
Agreed delivery times are only approximate. Y-COM is entitled to make partial deliveries. The place of delivery is given in the offer or in the order confirmation. In the case of default of acceptance, the client shall bear all related costs, particularly warehouse expenses. The delivered products only become the property of the client with full payment of the purchase price.
Delivered products are to be inspected immediately upon receipt for conformity with contract and notice of discernible defects is to be given at once. Otherwise the delivered products are regarded as approved. The period of guarantee for delivered products and spare parts is 12 months. In the case of defective products or lack of assured qualities, Y-COM can choose whether to rectify the defective object or replace it within an appropriate period of time. In this case Y-COM is entitled to inspect the products in the way it sees fit, on its own premises. If rectifying defects or substitute delivery fail, the client is entitled to demand a reduction of the purchase price or cancellation of the contract. Claims that go beyond this are inadmissible. In the case of rectifying defects / substitute delivery, with the dismounting / replacement Y-COM acquires ownership of the dismounted / replaced components / equipment.
In particular, Y-COM does not warranty:
- defects caused by faulty installation by the client or by a third party assigned by the client, operating errors, interference with or modification of the products by the client or an unauthorised third party, or defects that can be attributed to external influence on the products
- the suitability of the products for a particular purpose;
- integration products (refer to clause 7)
- services provided in accordance with the client's directives.
In the case of third party products, only the provisions of the manufacturer's guarantee apply. Where third party products have a shorter warranty period than that agreed with client, the shorter guarantee period applies to these third party products.
Services (i.e. maintenance services) will be provided by Y-COM or third parties assigned by Y-COM. Possible reaction times are approximately agreed and can vary in individual cases (e.g. difficult access to equipment site). Agreed reaction times are not applicable to spare parts / components that are not absolutely necessary to maintaining the functionality of the product (e.g. hinges, flaps, cosmetic parts, framework parts). Services can also be provided by telephone, over modem or over the Internet. Besides maintenance, services can include installation, integration, specification, waste disposal, training or consultancy services where these have been agreed. In the case of replacement of components, with the dismounting / replacement Y-COM acquires ownership of the dismounted / replaced components / equipment. Unless otherwise agreed, the following services are not provided by Y-COM: cases where in accordance with the abovementioned regulations of clause 5, guaranteed services are inadmissible; configuration work; relocation of products; preventive maintenance; replacement of consumable materials; replacement of diskettes/CD-ROM; work that is not necessary for maintenance; works on the electrical facilities of the client; software and/or data transfer; elimination of viruses.
7. Integration / Products
Where integration products are required, the client will make these available to Y-COM in good time or commission Y-COM to acquire them on behalf of the client. Y-COM will test integration products to find out it they can be integrated into Y-COM products and will produce an appropriate configuration in affirmative cases. As far as configurations cannot be technically produced, Y-COM is freed from further service obligations.
Y-COM is not liable for damages unless the damage is caused intentionally or by gross negligence on the part of Y-COM. Liability arising from assured properties by Y-COM remains, but does not represent a guarantee in the sense of §§ 443 and 444 of the German Civil Code. Y-COM is not liable for consequential damage or indirect damage, such as lost of earnings, production shortfall, loss of data etc., irrespective of whether these are based on contract or established law.
9. Protection rights
Y-COM will exempt the client from claims by third parties due to breach of third party protection rights, provided the client informed Y-COM in writing of such claims promptly and enable Y-COM to make use of all necessary legal defence measures (this embraces litigation, including arriving at settlements). Hereby, the client will support Y-COM as far as possible. YCOM can choose whether to rectify the offending products or to replace them with non-offending products, or to reimburse the client the purchase price minus an appropriate utilisation fee. Claims by the client that go beyond this are inadmissible. The client exempts Y-COM from all claims that third parties can make against Y-COM, where Y-COM integrated integration products or products with third party protection rights into Y-COM Products of as part of integration / configuration (refer to clause 7) in accordance with instructions of the client.
In the case of software delivered by Y-COM but not manufactured by Y-COM the provisions of the respective licensing contract of the software manufacturer apply. These are enclosed with the respective product. The client will expressly acknowledge this. In the case of software manufactured by Y-COM, the general terms of delivery for software licensing contracts of Y-COM GmbH apply.
The delivered products can contain technologies and/or software, which are respectively subject to the applicable export control regulations of the Federal Republic of Germany, the country of the client and the export control regulations of the countries in which the products are delivered or used. The client commits to comply with these regulations.
12. Force majeure
Y-COM does not have to vouch for non-fulfilment or for delayed fulfilment of contractual duties, if these are caused by an obstacle lying outside Y-COM’s area of influence (e.g. non-delivery of supply components, natural catastrophes, sovereign acts, strikes, lockouts) and the agreed time for performance is correspondingly extended. If the obstacle continues for longer than 3 months, the client and Y-COM (each for itself) are entitled to terminate the contract without observing a period of notice. Claims that go beyond this are inadmissible.
In the framework of the business relationship the client and Y-COM will treatwith confidentially known business and trade secrets of the other or those marked or obviously recognisable as such during and after completion of the business relationship.
The client and Y-COM (each for itself) are entitled to terminate the contractual relationship, if despite the fixing of a time limit with threat of refusal the client is more than 2 months in arrears with agreed payments or Y-COM is more than 2 months in arrears with the performance of its service. Furthermore, the client and Y-COM (each for itself) are entitled to terminate a completed contract in the following cases: breach of an essential contractual obligation by the other party; lasting breach of contractual obligation, as far as this is not ended within a period of 30 days after receipt of a corresponding demand from the injured party; opening of insolvency or bankruptcy proceedings over the assets of the other party.
15. Data protection
In the framework of the development of the business relationship the data of the client and Y-COM are subject to electronic data processing. Clients and Y-COM will observe the regulations of the Federal Data Protection Law in the use of data relating to personnel.
16. Applicable law, place of jurisdiction
The law of the Federal Republic of Germany applies. Application of the uniform law on the sale of goods and The Hague Conventions relating to the uniform laws on the international sale of goods and/or similar contracts are expressly excluded. The place of jurisdiction is Düsseldorf.
17. General regulations
The client commits to provide Y-COM with any information necessary for the performance of services, to guarantee access to the products and to cooperate where necessary. Before performance of a service by Y-COM, the client will remove all components, products etc. not installed by Y-COM, and make backups of data and programmes. Should one or several provisions of these general terms and conditions of business and possible further contracts be or become ineffective, the validity of the rest of the contract shall not be affected. The client and Y-COM undertake to replace the ineffective provisions with an equivalent regulation in terms of economic outcome. Y-COM is entitled to subcontract individual commitments. The client is not entitled to assign its claims. Terminations shall be made in writing and are to be sent by registered mail.
General terms of delivery for software licensing contracts
1. Subject of the contract
Subject of the contract is the computer program, program description and operating instructions recorded on the data medium (diskette / CD-ROM etc.). By observing the program description and operating instructions, theSubject of the contract is the computer program, program description and operating instructions recorded on the data medium (diskette / CD-ROM etc.). By observing the program description and operating instructions, theapplication described in the contract is fundamentally possible with this software package. There is no guarantee, however, that the software works faultlessly in all applications and combinations.
2. Scope of use
For the duration of the contract Y-COM GmbH guarantees you for the simple, non-exclusive and personal right (hereinafter also referred to as "licence") to use Y-COM GmbH software on one single computer, i.e. with only one single central processing unit (CPU) and only in one location. If this individual computer is a multi-user system, this right to use is applicable to all users of this one system. As licensee, you are allowed to transfer software in physical form (i.e. stored on a data medium) from a computer on another computer, provided that the software is always used only on one single computer. Usage that goes beyond this is not permitted.
3. Special limitations
The licensee is prohibited from:
- handing over the software or the accompanying written material to a third party or to make it accessible to a third party in some other way without prior written consent of Y-COM GmbH,
- transferring the software from one computer via a network or a data communication channel to another computer,
- modifying the software, compiling, breaking down the development, decompiling or disassembling without prior written consent of Y-COM GmbH,
- translating or modifying the written material or producing works derived from the written material.
4. Rights of ownership
With the purchase of the product you are only entitled to ownership of the physical data medium on which the software is recorded. This does not include acquisition rights to the software itself. In particular, Y-COM GmbH retains all publication, duplication, adaptation and utilisation rights to the software.
The software and the accompanying written material are copyright protected. If the software does not have copy protection, you are allowed to prepare one single reserve copy for protection purposes only. You are obliged to include the Y-COM GmbH copyright statement on the reserve copy. Any copyright statements and registration number included in the software may not be removed. It is expressly prohibited to copy or to reproduce in another form, the software, or the written material, wholly or partially in original or altered form or mixed with or enclosed within other software.
6. Transfer of right to use
The right to use the software can only be transferred to a third party with prior written consent from Y-COM GmbH and only under the terms of this contract. Giving away, hiring or lending the software is expressly forbidden.
7. Duration of the contract
The duration of the contract is indefinite. The licensee's right to the use of the software automatically expires without notice of termination if he breaches a condition of this contract. With the ending of the right to use, he is obliged to destroy the original diskette / CDROM etc. and all copies of the software, including any modified copies, and the written material.
8. Damages for breach of contract
Y-COM GmbH draws attention to the fact that you are liable for all damages originating from breach of copyright arising for Y-COM GmbH from a breach of these contract regulations by you.
9. Alterations and updating
Y-COM GmbH is entitled to produce updated versions of the software at its own discretion.
10. Y-COM GmbH guarantee and liability
- Y-COM GmbH guarantees the original licensee that the data medium (diskette / CD-ROM), on which the software is recorded and the hardware delivered with the software are free from defects under normal operationalY-COM GmbH guarantees the original licensee that the data medium (diskette / CD-ROM), on which the software is recorded and the hardware delivered with the software are free from defects under normal operationalconditions and with normal maintenance at the time of handover.
- Should the data medium (the diskette / CD-ROM) or the hardware delivered with it be defect, the purchaser can demand replacement during the guarantee time of 6 months from the date of delivery. Claims that go beyond this are inadmissible.
- If a defect as defined in clause 10. b) should not be remedied by substitute delivery within an appropriate period of time, the purchaser can choose whether to make reductions to the purchase price or demand cancellation of the contract.
- For the reasons named in Para 1, Y-COM GmbH does not accept liability for the flawless condition of the software. In particular, Y-COM does not guarantee that the software fulfils the requirements and purposes of the purchaser or works with other programmes selected by him. The purchaser bears responsibility for the correct selection and the consequences of the use of the software and the results thus intended or achieved. The same applies to the written material accompanying the software. If the software cannot be used as described in 1, the purchaser has the right to cancel the contract. Y-COM GmbH has the same right if the of software as described in 1 cannot be produced at reasonable cost.
- Y-COM is not liable for damages unless the damage is caused intentionally or by gross negligence on the part of Y-COM. Liability arising from assured properties by Y-COM is not affected but does not represent a guarantee in the sense of §§ 443 and 444 of the German Civil Code.
- Y-COM is not liable for consequential damage or indirect damage, such as lost of profit, production shortfall, loss of data etc., irrespective of whether these are based on contract or established law.
11. Applicable law, place of jurisdiction
The law of the Federal Republic of Germany applies. Application of the uniform law on the sale of goods and The Hague Convention relating to the uniform laws on the international sale of goods and/or similar contracts are expressly excluded. The place of jurisdiction is Düsseldorf.
12. General regulations
Should one or several provisions of these general terms and conditions of business and possible further contracts be or become ineffective, the validity of the rest of the contract shall not be affected. The client and Y-COM are obliged to replace the ineffective provisions with an equivalent regulation in terms of economic outcome.