Terms and Conditions
Bluetest Testservice GmbH
Dated: March 2012
1. General Terms:
1.1 The following terms and conditions apply to any deliveries, services and quotes of Bluetest Testservice
GmbH (hereafter referred to as bluetest)
1.2 Our terms and conditions apply exclusively. Contradictory or deviating conditions of the customer will not be accepted, unless otherwise agreed to in a written agreement. Our terms and conditions are even valid if we carry out our services without reservation while being informed of our customer’s conflicting or differing conditions from ours.
1.3 Derogations from these terms and conditions and/or supplements and supplements of concluded contracts and of the applicable terms and conditions are only effective if they are confirmed in writing. The same shall apply to any deviation from the written requirement.
2. Offer and contract conclusion:
2.1 Offers of bluetest are subject to change and noncommittal.
2.2 The scope of services to be provided by bluetest is determined in the purchase order by the customer. Complementary the following terms and conditions apply.
3. Scope of service
3.1. bluetest is entitled to use the assistance of third parties for the fulfillment of the services owed by it.
3.2. bluetest is entitled to render part deliverances and part services at its own discretion for contracts.
3.3. bluetest is not obliged to check the client’s data, information or other performances for correctness,
completeness and plausibility.
3.4. If the order merely concerns the testing or appraisal of parts of an entire project, bluetest shall not warrant the orderly completion, faultless condition or functioning of the plant.
4. Terms of payment
4.1 All compensations are in Euro net fees, plus VAT valid to the effective date at the time of the conclusion of the agreement.
4.2 Upon fulfillment of the contract payment is due within 14 days after date of invoice.
4.3 In the event of orders whose total compensation exceeds 1000,00 €, bluetest shall have the right to charge for the expenses in installments, which are due within 14 days after date of invoice.
4.4 If the customer defaults on the payment of invoices for installments, despite being set an extended deadline bluetest shall have the right to refuse performance of the rest of the contract, to withdraw from the contract or to demand compensation.
5. Terms of delivery
5.1. Delivery dates and times are only binding when agreed and confirmed by bluetest in writing.
5.2 The agreed-upon delivery period by shall only start to run providing that technical issues have been clarified.
5.3. Delays that are caused by the customer, postpone the delivery or execution date accordingly.
5.4. Changes of order shall lead to the cancellation of agreed deadlines and terms, unless otherwise has been agreed upon in writing.
6. Default of Acceptance
If the customer defaults in the acceptance of the delivery or performance of a service, bluetest is entitled, after the expiry of maximum 14 days, to refuse performance of the contract and/or claim damages for nonperformance. If bluetest claims damages they shall amount to 10% of the order value unless the customer proves that the loss suffered was not less or bluetest, that it was greater.
7. Defects in Quality
7.1. A material deficiency exists if the Software or test performance does not have the quality agreed on in the contract or if it is not suitable for the use designated in the contract. In case of defects as to quality the following regulations also apply logically to the application.
7.2. After the delivery/transfer of the Software or test performance at the customer, he/she is obliged to inspect the contractual service immediately after delivery and shall forthwith report any defects or damage to bluetest. This duty is defined by Section 377 of the German Commercial Code (HGB). If the customer breaches this duty, he/she shall no longer be entitled to claims and rights regulated to defects in relation to material deficiencies, where a proper initial inspection would have been obvious.
7.3. Any defects arising are to be documented by the customer as comprehensibly as possible for bluetest and inform bluetest wherever possible in writing and without delay after detection.
7.4. Shall the customer claim damage to property according to the aforementioned paragraph; bluetest will provide the following supplementary performance: bluetest shall be entitled, at its own discretion, to remedy the defect by reworking or to deliver a new replacement. The customer may, within reasonable time, demand new delivery or subsequent improvement, if the respective other way of rectification is not acceptable for the customer.
7.5. The elimination of defects by bluestest can also be carried out in the form of instructions to the customer by telephone or in writing or by electronic means.
7.6. If it results that a deficiency communicated by customer does in fact not exist or cannot be ascribed to the contractual subject matter, bluetest is entitled to charge the customer for the expense incurred for the analysis and other processing based on the current pricelist for services at bluestest.
8. Reduction or Rescission
8.1. If bluetest fails to provide remedy within a reasonable time period, that is, a time period that allows for at least two attempts at improvement, the customer shall be entitled to demand a reduction in the agreed remuneration and compensation for expenses, or to withdraw from the contract.
8.2. The attempt to provide rectification is not considered a final failure after the second trial. The number of trials during additional respite periods is rather up to us and depends on the type of deficiency, the special circumstances (e.g. personnel), as well as the type of affected software/hardware (involvement of third parties and more).
9. Damages and Reimbursements
Additionally to the withdrawal from contract and the reduction of compensation, the customer may, if bluetest is at fault, claim damages instead of performance or claim incurred expenses.
All claims arising from material defects and defects of title lapse after one year from delivery of the Software of test performance. This does not apply in cases of clause 12.
11. Changes to Programs by Customer
As far as a customer changes programs or has them modified by third parties, the claims with regard to defects in quality or title do not apply, unless the customer proves that defects that have occurred cannot be traced to this fact and that the defect analysis and any necessary elimination by bluetest in not impaired in this way.
12. Malice Guarantee
In the event of fraud or the assumption of a guarantee by the customer, legal warranty conditions remain unaffected.
13. Limitation of Liability
13.1. bluetest’s liability for damages on whatever legal grounds shall be limited in accordance with the following:
13.2. Restriction of liability by bluetest caused upon intention or gross negligence by either bluetest, any of the assistant staff or legal representatives is unlimited in terms of the amount.
13.3. In the event of damage resulting from injury to life, the body or health, liability exists in the case of simple negligent violation of a contractual obligation by bluetest or one of its legal representatives or employees and is unlimited in terms of the amount.
13.4. Unlimited liability is also granted for damages due to serious organizational flaws of bluetest and for damage caused by the lack of a feature guaranteed bluetest is unlimited, also in the case of simple negligence.
13.5. bluetest is liable in case of a violation of an essential contractual obligation if none of the cases referred to in items 13.2-13.4. and 13.7 applies. Liability is limited to the amount of typical contractual foreseeable damages within the frame of the contract.
13.6. Exclusion of liability any other liability for reparation of damages, in particular liability without fault, is excluded.
13.7. Liability pursuant to the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
14. Granting of Rights
14.1. bluetest retains and reserves all copyrights and industrial property rights to in the delivered Software as well as the right for its utilization for any supplied software, as long as nothing else has been formally stipulated and written down.
14.2. Unless expressly agreed in writing to the contrary the customer acquires a simple right of use of the delivered program media or otherwise provided software in accordance with the contract. This shall only be copied – if urgently required for technical reasons – for purposes of backup of the installation.
14.3. Editing to the software which is the object of the contract is inadmissible, unless mandatory statutory provisions provide otherwise unless otherwise agreed in writing.
14.4. Decompilation and disassembling of the contractual Software (Reverse-Engineering) is also prohibited. bluetest reserves the right to provide the customers on request with information that is necessary to achieve interoperability of the contractual Software with other programs. This is being made available by bluetest at an appropriate fee.
15. Property Rights of Third Parties
The contracting party is obligated to inform bluetest immediately in case of property claims of third parties regarding the delivered Software and leave the legal defense with the bluetest at its own expense. bluetest is entitled, due to property claims of third parties, to carry out necessary Software modifications at its own expense also in case of delivered and paid goods.
16. Confidentiality, Data Protection
16.1. The contracting party shall be obligated to treat any confidential information worthy of protection as well as documents belonging to the other contracting party, which is obviously confidential or has been indicated confidential by the contract partner as trade and business secrets.
16.2. The customer is obliged to treat any by bluetest delivered programs, codes and documentations, as well as concepts as their trade and business secrets.
16.3. The files of written documents made available to bluetest or for the execution of orders, can be transcribed or copied and retained by bluetest.
16.4. The customer authorizes bluetest to process, store and evaluate the supplier data received in connection with the business relation in compliance with the German Federal Data Protection Act.
17. Assignability of Claims, Right to Offset, Right of Retention
17.1. The client is not entitled to transfer any contractual rights or claims with bluetest without their approval to a third party.
17.2. The customer is only entitled to charge extra or to have recourse to withholding rights if the relevant counterclaims have been legally established or are undisputed.
18. Final Provisions
18.1. In the event of individual provisions of this contract being or becoming ineffective or unenforceable or should lose their legal effect; it shall not affect the validity of the remaining provisions. The same shall apply in cases where if the provisions of these terms and conditions should be found to be incomplete.
18.2. The law of the Federal Republic of Germany shall exclusively apply excluding the UN Convention on the International Sales of Goods.
18.3. Place of performance for all deliveries and services of bluetest is Stuttgart, Germany. If the customer is a merchant or is not domiciled in Germany, Stuttgart shall be the solely place of jurisdiction.
19. Important Note
The translation of these General Terms and Conditions is for information purpose only. In any case the German version shall prevail.