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Terms & Conditions

This Terms and Conditions can be downloaded here as PDF.

 

Content

A. General regulations

B. Specific regulations for loan of use

C. Specific regulations for purchase 

D. Specific regulations for development of services and goods

 

A. General regulations

These regulations apply for all contracts between the supplier and customer. In individual cases the specific regulations apply.

The DOSTAL GmbH markets the product DOSTAL DOSY, which can dose, titrate and mix Micro- and Nanoliter fluids providing singular portability with maximum compatibility. Moreover, accessories to the DOSTAL DOSY, further dosage equipment and software and related services (Service-Packages) are provided. Finally, development requests are pursued.

DOSTAL GmbH (DOSTAL) wishes to maintain honest transparent and fair business relationships with its contractors and customers. Therefore, DOSTAL wishes to inform his contractors and customers about the relevant judicial aspects of its business relationships.

 

1. Range of application, contract language

1.1. The here provided terms and conditions (According to German law: AGBs) apply for all contracts which are closed between DOSTAL GmbH, Schillerstraße 59, 06114 Halle/Saale (in the following termed „DOSTAL“ or "supplier“) and its customers regarding the contract for loan of use (lease for specific amount of time free of charge) and the contract of purchase for the DOSTAL DOSY and/or its accessories as well as all other products from DOSTAL.

1.2. These terms and conditions apply exclusively. Divergent, additional or opposing regulations of the customer will not become part of the contract, except the supplier agrees explicitly in a written statement. These terms and conditions apply in every case/contract even if the supplier, being aware of differing terms and conditions of the customers, conducts the order of the customer completely.

1.3. These terms and conditions apply exclusively for the in numeral 1.1. named commercial relationships of the supplier to the customer, which lends, rents or purchases the DOSTAL DOSY and its accessories or further equipment and services from DOSTAL not as consumer but for the sole purpose of commercial, industrial or self-employed use (= entrepreneur)

1.4. These terms and conditions apply as framework agreement for all reorder, further contracts or contracts closed in the future without the necessity for the supplier to point out the validity of these terms and conditions for each individual case. Individual agreements with the customer including supplements of an agreement, add-ons, or changes have legal priority to these terms and conditions but need to be stated in a written form and signed by the supplier.

1.5. The text of the contract is not saved by the supplier and is not retrievable from the Internet. Exceptions may be possible existing transfer or commercial law related safekeeping requirements/prescriptions. Contractual language is German.

 

2. Contractual partner, Conclusion of contract, subject-matter of a contract

2.1. Contractual partners are the supplier and the customer who is lending, renting or purchasing a DOSTAL DOSY, its accessories or further equipment and services including development work.

2.2. The selection of models displayed on the website of the supplier do not represent a binding offer, but should be understood as a request to get in contact with the supplier. By filling in and sending the electronic contact form on the website of the supplier no binding contract is closed.

2.3. On request per e.g. telephone, email or electronic form on the website the customer comes in contact with the supplier on which the supplier provides the customer with a binding offer, which is legally binding for 14 days if not differently stated and which can be accepted by the customer informally. Co-workers of the supplier are not allowed to give statements providing additional or supplementary services or products to the customer without prior written consent of the management board of the supplier.

2.4. The kind or model of the DOSTAL DOSY and the scope of the provided product or service, specific customer wishes (specific configuration of the DOSTAL DOSY) and further basic performance data (especially location and time) are fixed in the respective contract e.g. the by the customer formally affirmed quotation sheet. The supplier is allowed to use third party services to provide the contractual agreed services and products. The supplier provides the contractual agreed services and products through the supply of appropriate hardware including accessories and software according the contractual regulations. The provision of a success in the sense of the law applicable to works and services is not indebted by the supplier.

2.5. The customer is indebted to provide the supplier with information regarding the place of usage and kind of usage of the DOSTAL DOSY or further equipment of DOSTAL truthfully. The customer is especially required to truthfully inform the supplier in written form (e.g. email) about the use of the DOSTAL DOSY and its accessories or further equipment of DOSTAL outside of the federal republic of Germany.

 

3. Price, Conditions of payment, Default

3.1. To the marked prices provided by the supplier the legal VAT at the day of the invoice is added. Additional costs of transport, assembly, disassembly as well as in case of shipment the packaging costs and delivery costs and their respective VAT are shown separately to the customer and are to be paid by the customer, if not in a specific case stated differently in written form. Additional costs e.g. custom duties, fees, taxes or further public fees are to be covered and paid for by the customer and are to be requested by the relevant institutions. The calculation of the prices, if not stated differently, are done in EURO.

3.2. Invoices of the supplier are to be paid without deductions in the first 14 calendar days starting from obtaining the invoice. Objections to the invoice of the supplier are (except of differing priory agreed to written statements) to be stated in written form. Despite the requirement to raise objections against the invoice immediately, these objections of the customer are accepted by the supplier if the supplier is not objecting to objections of the customer in a respite of 4 weeks. In order to adhere to the respite the timely posting suffices. In case that after the end of the 4 weeks respite the objections are considered as false, the customer and the supplier have the right to a true and fair representation.

3.3. At the end of the named payment period (respite) the customer defaults without a dunning letter. On the amount of payment stated in the invoice a paid interest according the applicable legal interest for default (at the moment 9 percent above the legal base lending rate) to be paid by the customer. In case of default, the supplier may demand a lump sum payment of 40.00 Euro. The lump sump can be charged on the indebted compensation payment if the claim is based on legal prosecution. The supplier may charge further default claims if appropriated. If the customer is a merchant the claim of the supplier on the commercial default interest (§ 353 HGB) remains untouched.

 

4. Delivery and period of delivery

4.1 The delivery is contracted individually. In case the supplier cannot meet the period of delivery for reasons the supplier is not responsible for (unavailability of service/product), the supplier will inform the customer immediately and at the same time will inform about the predicted new period of delivery.

4.2. The delivery is provided by the supplier or by a supplier contracted hauler/logistics partner. If not contracted otherwise, the supplier is allowed to choose the kind of shipment (especially hauler, dispatcher, dispatch route, packaging).

4.3. At delivery the DOSTAL DOSY, including accessories and other devices supplied by DOSTAL are shipped in a specialized transport packaging for protection of all shipped goods. In case of return of shipment the customer is required to use the provided protective transport packaging.

 

5. Liability

5.1. The supplier is liable for damages resulting from injuries of life, body, health or sexual self-determination caused by a negligent breach of duty of the supplier or caused by an intended or negligent breach of duty of a legal representative or vicarious agent of the supplier. Furthermore, the supplier is liable for further damages resulting from a gross negligent breach of duty by the supplier or by an intended or negligent breach of duty of a legal representative or vicarious agent of the supplier as well as in other legal cases, such as fraudulent concealment of faulty goods.

5.2. In case of property damages and financial loss caused through negligence, the supplier is only liable if a significant breach of contract occurs and only to the extend that was predictable and typical for the contract at the moment of the conclusion of the contract. A significant breach of contract occurs if proper processing of the contract is impossible, on which the contractors where allowed to trust, resulting in the impossibility of a contractual use. In case of an insignificant breach of contract the liability of the supplier for a slightly negligent breach of duty is ruled out.

5.3. The liability according to the German “Produkthaftungsgesetz” (Product Liability Act) remains unaffected. In case the liability of the supplier is excluded or limited this applies likewise for the personal liability of employees, representatives and vicarious agents of the supplier.

 

6. License requirements, usage, instructions for use

6.1. The customer is responsible for paying and timely obtaining the regulations under public law which are necessary for the, by the customer intended, usage of the DOSTAL DOSY, its accessories and further products from DOSTAL.

6.2. The customer uses the DOSTAL DOSY, its accessories and further products from DOSTAL in a contracted and appropriate way by observing all applicable legal prescriptions. The customer uses the DOSTAL DOSY, its accessories and further products from DOSTAL with care by observing all relevant technical regulations. The customer adheres to all instructions of the supplier concerning maintenance, care and usage of the DOSTAL DOSY, its accessories and further products from DOSTAL.

6.3. The instructions of use, serial numbers, warning labels or other labels of the supplier attached to the DOSTAL DOSY, its accessories and further products from DOSTAL may not be removed, covered or rendered unrecognizable.

6.4. The customer is explicitly asked to carefully read and study the downloadable handbook of the DOSTAL DOSY prior to the first usage of the DOSTAL DOSY and its accessories. Moreover, the customer is explicitly asked to adhere to the instruction of use and maintenance in order to prevent damages to the DOSTAL DOSY and its accessories as well as to the user, other equipment or other beings.

 

7. Data protection, obligation to observe confidentiality

7.1. The supplier processes personal data of customer earmarked and according to the legal legislation (German Datenschutzgesetz – data protection act).

7.2. Personal data that is provided to the supplier for the reason of ordering of goods (including name, email address, mailing address, telephone numbers, bank account details) are, if not contracted otherwise, exclusively used by the supplier to fulfill and process the order and the contract. These personal data are treated strictly confident and are not provided to third party representatives, who are not involved in order, shipment and payment processes.

7.3. The customer has the right to obtain free of charge information concerning the content and the state of his personal data saved by the supplier. Moreover the customer has the right to correction of falsified personal data, blockage and erasure of personal data as long as no legal compulsory safekeeping requirements are affected.

7.4. Further information regarding kind, scope, location and purpose of data collection, processing and usage of the required personal data are detailed in the data privacy statement.

 

8. Reference data

The supplier is allowed to use the customer as reference data. This includes the right to publish the name of the company/institution, the name of the customer, the logo of the company/institution as well as pictures.

 

9. Extend of rights granted

9.1. The DOSTAL DOSY is controlled via a software (DOSY TOOL), which is either provided by the supplier via data carrier, download or digital (e.g. email).

9.2. The customer obtains a non-exclusive, simple right to the usage to the control software (DOSY TOOL) according to these terms and conditions. The allowed usage of the customers includes the installation of the control software (DOSY TOOL), the upload in the random access memory and the designated use. The customer is not allowed to share, lend, rent, sell or under licenses or give free access of parts or the entire control software (DOSY TOOL) to third party member.

9.3. The customer is allowed to keep a backup if necessary for further use. The customer is required to mark visibly the backup with the notice “backup” along with a copyright notice.

9.4. The customer is only allowed to copy and decompile the control software (DOSY TOOL) if necessitate by federal law and if the supplier has not provided the customer with the required information in an adequate amount of time.

9.5. In case the supplier consents to a further resale of the DOSTAL DOSY and its accessories the customer is allowed to provide his copy of the control software (DOSY TOOL) to a third party for permanent use. In this case, and if he is not required to do otherwise due to legal safe-keeping regulations, the customer terminates the usage of the control software (DOSY TOOL), erases the entire software from all computers and storage devices completely. If requested by the supplier the customer is required to confirm in a written statement the execution of the before mentioned duties or give sound reason for a longer safe-keeping. Moreover, the customer is required to contract the third party to adhere to these regulations in these terms and conditions concerning the extend of rights granted.

9.6. The instructions of use, serial numbers, warning labels or other labels of the supplier intended to identify the control program (DOSY TOOL), may not be removed, changed or rendered unrecognizable.

 

10. Applicable law, final clause

10.1. All legal relationships (relationships of privity) between the supplier and the customer are covered by the law of the Federal Republic of Germany, explicitly excluding international law especially United Nations Convention on Contracts for the International Sale of Goods.

10.2. Exclusive jurisdiction for all direct and indirect legal conflicts resulting from business relationships is the address of record of the supplier in Halle (Saale), Germany.

10.3. Legally relevant declaration and notifications of the customer stated to the supplier after the conclusion of the contract (defaults, notice of defects, cancellation of contract, abatement) require a written form, e.g. fax, email, letter.

10.4. In case individual clauses of these General Terms and Conditions of Business are void or ineffective, or become so, the effectiveness of the remaining provisions and clauses is not affected by this. In place of the void or ineffective provisions the regulations of the law of the Federal Republic of Germany apply.

 

B. Specific regulations for loan of use

In case the supplier and the customer agree on a timely defined, free of charge loan (loan of use) of a DOSTAL DOSY including its accessories or further products from DOSTAL the following provisions apply in addition to the regulations/provisions stated in part A of these terms and conditions.

 

11. Duration of lending and return (escheat)

11.1. The contracting parties determine the duration of lending.

11.2. At the end of the lending period the DOSTAL DOSY is to be returned to the supplier in sound condition. The handing over of the DOSTAL DOSY and its accessories to the hauler/ logistics partner or to the supplier has to take place the latest at the last day of the lending period.

11.3. The costs for the return transport/shipment is covered by the Lessee.

11.4. In case the DOSTAL DOSY and its accessories are not returned in the previously agreed on period of lending, the Lessee is indebted to pay a compensation for use of 100.00 Euro plus VAT per day. In case the Lessee decides to purchase the DOSTAL DOSY during the duration of lending or thereafter the payment of compensation for use will be cancelled.

11.5. Possible claims for indemnity of the following Lessee or third parties because of a delayed return of the DOSTAL DOSY and its accessories directed to the supplier is directly charged to the delayed Lessee. The supplier may pursue further claims for indemnity.

 

12. Prohibition of subletting and subleasing, information of property of the supplier

12.1. Rights and duties resulting from the contract may not be transferred to third parties without the written consent of the supplier. A subletting or subleasing of the DOSTAL DOSY and its accessories is prohibited.

12.2. During the duration of lending the DOSTAL DOSY and its accessories may not be altered technically or regarding its mechatronics or software or otherwise leading to irreversible changes of the product. Specifically the DOSTAL DOSY may not come in contact with hazardous material materials according to the GHS (Globally Harmonized System of Classification and Labelling of Chemicals) classification such as health hazardous chemical, biochemical, biological fluids, solids or gases and especially radioactive substances, heavy metals and pro- as well as eukaryotic cells.

12.3. In case the DOSTAL DOSY and its accessories come in contact with the before mentioned hazardous materials (12.2) the DOSTAL DOSY and its accessories cannot be returned to the supplier. In this case the Lessee is required to purchase the DOSTAL DOSY and its accessories to the current catalog price.

12.4. In case the DOSTAL DOSY and its accessories have been attached, seized or otherwise disposed of by a third party the Lessee has to point out the DOSTAL DOSY and its accessories to be the property of the supplier and has to inform the supplier immediately for the supplier to claims his rights of property. In case the third party cannot reimburse the judicial and extrajudicial costs to the supplier the Lessee is liable.

 

13. Liability

Additional to the regulations/provisions stated in Ziff. 5 the Lessee is completely liable for damages originating from non-contract compliant use and abnormal handling (including transport, installation, usage, disassembly, handling, surveillance through a third party, storage) of the DOSTAL DOSY and its accessories through the Lessee and its vicarious agents. The supplier is not liable for any claims from third parties.

 

14. Error messages, Warranty, due diligence

14.1. The Lessee is required to immediately inform the supplier about errors, faults or faulty behavior of the DOSTAL DOSY or its accessories.

14.2. Judging from the error message the supplier will decide whether to repair the DOSTAL DOSY or whether a compensation delivery will result in a contractual fault correction.

14.3. The supplier charges the Lessee for the costs resulting from fault correction and/or compensation delivery (transport, travel, material, personal) that originate from non-contract compliant use and abnormal handling (including transport, installation, usage, disassembly, handling, surveillance through a third party, storage) of the DOSTAL DOSY and its accessories.

14.4. In case the Lessee is liable for total loss, loss or theft the Lessee is required to pay the current replacement value of the DOSTAL DOSY and its accessories according to the current catalog price.

 

C. Specific regulation for purchase

In case the supplier and the customer agree on purchasing the DOSTAL DOSY including its accessories or further products from DOSTAL the following provisions apply in addition to the regulations/provisions stated in part B of these terms and conditions.

 

15. Price and shipping costs

15.1. The prices displayed are net-prices. Taxes such as VAT and shipping costs are to be paid in addition.

15.2. In case of shipment abroad outside the EU, the customer has to pay for further taxes, tolls and fees. These further taxes, customs and fees are not to be paid to the supplier but to the appropriate customs and tax authorities. The customer is advised to ask details from the appropriate customs and tax authorities prior to ordering the DOSTAL DOSY including its accessories or further products from DOSTAL.

 

16. Reservation of proprietary rights (title retention)

16.1. The delivered/shipped goods remain property of the supplier until the complete payment of the purchase price has taken place.

16.2. In case the customer displays conduct contrary to the terms of the contract (infringement of the contract), especially if the customer comes into default with the indebted payment, the supplier has the right to take the goods subjected to retention of title back if the supplier has provided the customer with an appropriate deadline (respite) for making the payment. In case the supplier takes the goods subjected to retention of title back, this represents a cancelation of contract. The costs for return transportation are to be paid by the customer. The supplier can commercialize taken back goods subjected to retention of title. The revenue is used to settle the debt of the customer.

16.3. The customer has to handle goods subjected to retention of title with care. The customer has to insure these goods to the extend of their reinstatement value on his own cost against fire, water and theft.

16.4. In case the DOSTAL DOSY and its accessories have been attached, seized or otherwise disposed of by a third party the customer has to point out that the DOSTAL DOSY and its accessories are the property of the supplier and has to inform the supplier immediately for the supplier to claims his rights of property. In case the third party cannot reimburse the judicial and extrajudicial costs to the supplier the customer is liable.

 

17. Delivery and transfer of risk

17.1. After receiving the goods the customer immediately investigates the goods regarding obvious faults, errors and damages (e.g. damages from transport) and informs the hauler/logistic partner and DOSTAL immediately about them.

17.2. The risk of accidental transfer of risk and the risk of accidental deterioration of the good passes onto the customer the latest at the delivery to the buyer. In case of sale by delivery to a place other than the place of performance, the risk of accidental transfer of risk and the risk of accidental deterioration of the good as well as the risk of delay passes onto the hauler/logistics partner with the delivery of the goods by the supplier to the hauler/logistics partner or its representative irrespectively if the customer is in default of receiving incoming goods.

 

18. Warranty

18.1. After receiving the goods the customer is required to immediately (without undue delay) investigate the goods regarding obvious defects as of quality (especially wrong delivery, quantity variance) and damages in transit and in case of damage, defect, error or fault to inform the supplier immediately about them. In case of a latent defect, which is discovered later, the supplier is to be informed immediately. Defining is the timely notification of the defect. In the event of default of the notification of defect the good is considered to be approved by the customer.

18.2. The defects liability period is set to one (1) year starting from the delivery of the goods. The reduction of the defects liability period according to Ziffer 15.2 does not apply for defects, damages and faults resulting from injuries of life, body, health or sexual self-determination caused by a negligent breach of duty of the supplier or caused by an intended or negligent breach of duty of a legal representative or vicarious agent of the supplier. Furthermore, the reduction of the defects liability period according to Ziffer 15.2 does not apply for defects, damages and faults resulting from a gross negligent breach of duty by the supplier or by an intended or negligent breach of duty of a legal representative or vicarious agent of the supplier as well as in other legal cases, such as fraudulent concealment of faulty goods and in the case of claims of damages according to §§ 478, 479 BGB.

 

D. Specific regulations for development of services and goods

 

19. Scope of application

19.1. These terms and conditions are designated to regulate the contractual relationship between DOSTAL GmbH, Schillerstraße 59, 06114 Halle/Saale (in the following termed „DOSTAL“) and his customer.

19.2. Only companies according to German law may become customers. In particular customer may be every natural or juridical person or non-incorporated firm having legal capacity, which carries out a commercial or independent professional occupation at the conclusion of contract.

19.3. These terms and conditions apply exclusively. Contradicting and supplementary terms and conditions of the customer are not applicable.

19.4. DOSTAL is authorized to change the terms and conditions as long as these changes are just and reasonable for the customer. In case DOSTAL intends to change the terms and conditions customers are informed either via email or via regular mail in due time. In case the customer does not object to the changed terms and conditions in a period of 4 weeks after receiving the changed terms and conditions these changes are considered to be accepted. DOSTAL informs its customers regarding the right of objection and the legal consequences of the expiration date.

 

20. Principle of collaboration

DOSTAL wishes for fair and harmonic business relations with all customers and partners. DOSTAL underlines that definite results of research and development activities can naturally not be warranted for. The same applies for the outcome of experimental setups and test stands.

 

21. Subject-matter of contract, order acknowledgement.

21.1. The specific subject-matter of contract comprises the services and goods described in the offer from DOSTAL, which were acknowledge by the customer or partner. In case the customer orders DOSTAL to manufacture a test stand, it is understood that this test stand is an individual, specially manufactured scientific experimental setup and not a product accessible to the general movement of goods according to the German „Produkthaftungsgesetzes“ (Product Liability Act).

21.2. Prior to the conclusion of the contract an extensive briefing between DOSTAL and the customer takes place. The conclusion of the contract proceeds in a way that DOSTAL provides the customer a written offer/quotation either via email or letter. This offer/quotation is then accepted by the customer in written form, by signing the offer/quotation and sending it back to DOSTAL either via email or letter. DOSTAL is allowed following the composition of the target specification manual (Pflichtenheft) as responds to the requirement specification manual (Lastenheft) to issue a improved offer/quotation on the basis of the target specification manual (Pflichtenheft). The customer is allowed to accept this offer during the 10 working days following the receivable of the improved offer/quotation. In case the customer does not accept the improved offer/quotation DOSTAL is allowed to charge the customer for examining the requirement specification manual (Lastenheft) and composing the target specification manual (Pflichtenheft) and related provided services.

 

22. Services and goods of DOSTAL

22.1. The requirement specification manual (Lastenheft) defines the scope of services that DOSTAL is required to deliver. The requirement specification manual (Lastenheft) has to be provided to DOSTAL by the customer prior to conclusion of the contract.

22.2. The customer is required, when providing the requirement specification manual (Lastenheft) to DOSTAL, to inform DOSTAL about all relevant and to be applied regulations, regulatory national and international documents and mandatory standards and specifications. This includes specifically but not exclusively standards and regulations regarding the safety of the subject-matter of contract, the application in medical and genetic engineering as well as environment and radiation regulations and specifications.

22.3. DOSTAL is aware of the ideas and conceptions described by the customer in the requirement specification manual (Lastenheft) and has examined these regarding their completeness, applicability, unambiguousness, possibility of realization and consistency. In case DOSTAL concludes that the requirements stated in the requirement specification manual (Lastenheft) are not of a suitable quality, DOSTAL immediately informs its customer and provides a written modification proposal or a suitable change or amendment of the requirement specification manual (Lastenheft). The modification proposal has to encompass the putative additional cost as well as the putative necessary changes in the time line. The customer has to reply legally binding to the modification proposal during 5 working days following its receivable.

22.4. On the basis of the information stated in the requirement specification manual (Lastenheft) DOSTAL composes the target specification manual (Pflichtenheft). The target specification manual (Pflichtenheft) describes specifically the technical realization of the stated requirements and specifications in the requirement specification manual (Lastenheft).

22.5. The completed target specification manual (Pflichtenheft) is provided to customer through DOSTAL and if applicable along with an improved offer/quotation in order to be accepted by the customer. In case the completed target specification manual (Pflichtenheft) is inadequate or faulty especially if the requirements of the requirement specification manual (Lastenheft) are not met completely the customer may refuse the acceptance. In this case DOSTAL has the right and duty for a dual rectification of defects of the target specification manual (Pflichtenheft). In case the target specification manual (Pflichtenheft) remains still faulty or inadequate the customer may revoke from the entire contract.

22.6. Following the acceptance of the target specification manual (Pflichtenheft) by the customer, DOSTAL provides the services and goods detailed in the target specification manual (Pflichtenheft) according to its details. Following the acceptance the content of the target specification manual (Pflichtenheft) becomes the service owed by DOSTAL.

22.7. In case the target specification manual (Pflichtenheft) is not accepted by the customer during 1 month, DOSTAL is allowed to revoke the entire contract. This only applies if DOSTAL has provided the customer with a written request to accept the offer and target specification manual (Pflichtenheft) detailing the legal consequences. In this case, DOSTAL is allowed to charge the customer for examining the requirement specification manual (Lastenheft) and composing the target specification manual (Pflichtenheft) and related provided services.

22.8. Until the acceptance of the subject-matter of the contract, the customer is allowed to demand for changes and modifications of the services or goods at any time. DOSTAL will provide the customer with a detailed report on the expected financial, technical and time-related consequences during 5 working days. In case the demanded changes or modifications exceed the requirements and specifications of the accepted target specification manual (Pflichtenheft), the contractual parties prolong the delivery date in mutual agreement. In case DOSTAL does not handover the described detail report during the agreed upon time line, the customer is allowed to demand DOSTAL to do so in a time of 20 working days without further gratification or changes in the time or working schedule.

22.9. DOSTAL will provide the customer according to agreed upon time and working plan with the service and goods – the subject-matter of the contract with an appropriate deliver or hauler on an agreed upon time. 22.10. Oral arrangements are not legally binding.

 

23. Service provisions through DOSTAL

23.1. The scope of the services and goods owed by DOSTAL are provided and carried out with great care and attention and diligence. A concrete results however, is not owed by DOSTAL, in case this is not explicitly stated.

23.2. Type and amount of contractual services and goods may be influenced by legal requirements/regulations as well as decisions under public law enforced by public agencies. In order to enact these decisions under public law, DOSTAL is allowed to change the scope of the contractual services and goods accordingly.

23.3. Additionally DOSTAL is allowed to make changes or modifications to the scope of the contractual services and goods, which are protected by copyright. Regarding the changes in scope of the contractual services and goods DOSTAL will inform the customer as soon as possible.

23.4. DOSTAL may provide services and goods through third parties.

23.5. DOSTAL is allowed to contract third parties (sub contractors) to provide services and goods without the necessity of prior consent of the customer.

23.6. In case not explicitly agreed upon differently, DOSTAL is not obliged to provide the customer with handbooks, instruction manuals, instruction sheets, operation manuals, operation instructions, working instructions or related documentation. In case not explicitly agreed upon differently, DOSTAL is not obliged to provide the customer with development documentation including, sketches, designs, technical drawing, software codes or related documents.

 

24. The customers obligation to co-operate

24.1. The customer has to appropriately support the provision of services and goods by DOSTAL.

24.2. The customer names a contact person as well as his deputy for all issues regarding the subject-matter of the contract. The contact person as well as the deputy is to be placed into the position of either making decision by themselves or arranging them in a timely manner. Moreover, the customer provides the manpower and experts necessary to carry out or put in practice the subject-matter of the contract.

24.3. In case the customer does not comply with his obligation to co-operate, resulting in DOSTAL not being able to carry out the agreed upon services and goods in part of completely at the agreed upon timeline, the timeline will be adjust accordingly.

24.4. In case the customer does not completely or timely provide DOSTAL with the necessary information and specifications, DOSTAL is allowed to revoke the contract. This presumes that DOSTAL has requested the customer in written form to provide the missing information during a period of 1 month as well as has informed the customer on the legal consequences. In case of cancellation of the contract DOSTAL is allowed to charge the customer for all so far provided services and goods.

24.5. The customer is obligated to DOSTAL to name a contact person responsible for all issues regarding the co-operation. In case this contact person drops out, a contact person responsible for all issues regarding the co-operation is to be named. The customer along with his co-workers are obliged to warrant that no information or documentation is lost during the transition of the contact person.

 

25. Test phase and acceptance of contracted services and goods

25.1. Following the handover of the subject-matter of the contract, namely all services and goods owed by DOSTAL a one week test phase is provided to the customer. This phase begins with the completed handover of all services and goods by the deliver or hauler to the customer. The test phase allows the customer to check and verify the proper functionality of the subject-matter of the contract and the agreed upon specifications as well as to check for further defects or faults

25.2. The customer will inform DOSTAL about observed defects of the subject-matter of contract in a written from. During the test phase DOSTAL will provide all possible services to improve and eliminate the observed defects and faults immediately.

25.3. In case during the test phase, defects and faults occur, which DOSTAL is informed about in written form, the test phase is prolonged for an adequate amount of time for further testing after the fault and defects have been improved or eliminated by DOSTAL.

25.4. In case during the test phase including testing under load no significant faults or defects have been observed, or were communicated to DOSTAL in written form, the customer will sign a written statement that the subject-matter of contract is handed over correctly or righteously (acceptance of contracted services and goods).

25.5. DOSTAL does not carry out any DOE testing. Moreover, DOSTAL is not required and does not commission any testing institutes with the testing of the subject-matter of the contract. Furthermore no testing according to guidelines or instructions or technical requirements of third parties are conducted. No test protocols will be provided by DOSTAL. DOSTAL declares, that no CE marking or other conformity marking is planned for any goods or services provided by DOSTAL. In this regard no declaration of conformity according to harmonized European law is provided.

25.6. Goods, Products, Service or developments from third parties are not being tested by DOSTAL. Moreover, DOSTAL is not required to test the functionality and error-freeness of the subject-matter of the contract when used together or in combination with products, goods or services from third parties.

 

26. Delivery and passing of risk

26.1. The handing over of the subject-matter of the contract takes place in the most appropriated form. Software will be provided digitally, e.g. through download.

26.2. The risk of a passing of risk by chance and a random deterioration of the subject-matter of contract is passed over to the customer at the moment of delivery by the deliverer or hauler.

26.3. In case an acceptance of contracted services and goods is agreed upon this is legally binding for the passing of risk. The passing of risk and hence the acceptance of contracted services and goods is independent of whether the customer is in default of acceptance.

 

27. Right of use, right to identify/name, intellectual property

27.1. In case DOSTAL provides software to the customer, DOSTAL provides the customer with a simple time and space independent non-restricted right of use. This warrant of rights comprises all proprietary rights of use regarding the software, not however, the right to sublicense the software. In case the software contains open source parts, templates or modules of third parties the licenses agreements of the third parties are handed through to the customer.

27.2. The transfer of the right of use according to paragraph 9.1 as well as the passing over of property of other subject-matter of the contract is bound to the condition of a complete payment for the development of the software.

27.3. In case the customer desires to file for a patent or other intellectual property protections of a development where the subject-matter of the contract was used for or required for, the customer is required to include DOSTAL in the filing process. DOSTAL declares that it is not interested in holding patents or further intellectual property rights.

 

28. Warranty – defect liability

28.1. DOSTAL warrants for the correct production of the subject-matter of the contract according to the contract. DOSTAL warrants that the subject-matter of the contract is free of defaults or defects that lessen or derogate the contractual or standard use

28.2. DOSTAL does not warrant for that the subject-matter of the contract violates proprietary rights of third parties.

28.3. DOSTAL does not warrant for that the subject-matter of the contract violates international regulations, public law or further legal systems.

28.4. DOSTAL provides the warranty through the rectification of defects or the delivery of the subject-matter of contract or error-free documentation. In case DOSTAL can not rectify the defects and defaults during a appropriate amount of time, the customer is entitled to act according to §§ 634, 635 BGB (German law) or after fruitless rectification of defects by DOSTAL during a appropriate amount of time stated in written, the customer is entitled to commission a third party or own employees to carry out the rectification of defects according to § 637 BGB (German law) at the expense of DOSTAL.

28.5. The period of warranty is set to 12 month, starting from the complete acceptance of contracted services and goods according to paragraph 3.4 of these terms and conditions.

 

29. Reference

29.1. DOSTAL is allowed to name the customer as reference and the subject-matter of the contract to third parties. The customer is allowed to demand in written form, that is the above named right is only be executed after a specific amount of time but not more then 2 years.

29.2. DOSTAL is allowed to demand from the customer to sign DOSTAL’s non-disclosure agreement.

 

30. Liability

30.1. Claims of damages of the customer are excluded. Exempt from this are claims of damages of the customer regarding the violation of life, body, health and fundamental breaches of contract, as well as the liability for further damages which have occurred due to breaches of contract with intend or through gross negligence by DOSTAL or its vicarious agents. Fundamental breaches of contract are defined in a sense that they have to be fundamental for the conclusion of the contract itself.

30.2. DOSTAL is only liable for fundamental breaches of contract that are typical for the contract and predictable damages, if the damage was caused through simple negligent behavior except claims of damages regarding the violation of life, body and health, which were stated in written form.

30.3. The liability of DOSTAL according to the German „Produkthaftungsgesetzes“ (Product Liability Act) and further public laws remains untouched by the paragraph 12.1 and 12.2.

30.4. Paragraphs 12.1, 12.2 and 12.3 apply for all employees, representatives and vicarious agents of DOSTAL.

 

31. Payment, terms of payment

31.1. All of the named prices of services and goods by DOSTAL are without VAT.

31.2. All payments to DOSTAL according to the contract are due 10 days after receivable of a duly and verifiable bill.

31.3. All payments are due in EURO. The customer covers the risk of changing currency exchange rates. In case of bank transaction from foreign countries, the customer has to verify, that DOSTAL does not have to pay any bank transaction fees.

31.4. The summation of counterclaims of the customer or the holding back of payments because of these counterclaims is only acceptable if those counterclaims are properly recognized and ascertained in a legally binding way.

31.5. DOSTAL is allowed to demand advanced payment or another kind of provision of security, if DOSTAL gets reliable information that lessen the creditworthiness of the customer and through which the payment of open claims to DOSTAL by the customer is endangered.

31.6. Outstanding accounts versus DOSTAL can only be transferred to third parties prior to written consent given by DOSTAL. The regulation of § 354a HGB (German law) remains untouched.

 

32. Non-disclosure agreement

32.1. Confident information are those that have been brought to attention by the other party and documents concerning business processes of the respective party especially but not exclusively print material, artwork, layouts, storyboards, calculations, paintings, sketches, recordings, pictures, videos, electronically saved materials and interactive products as well as further proprietary material or art of the other party or related companies.

32.2. Both parties agree to maintain silence over confident information regarding the respective other party and only use this information when necessary for fulfilling the contractual duties. The obligation to confidentiality remains after the contract is concluded.

32.3. The obligation of confidentiality according to paragraph 14.1 and 14.2 does not apply for,

32.3.1. those information known to the parties prior the conclusion of the contract.

32.3.2. those information which have already been made public prior to the handing over to DOSTAL and without a breach of confidentiality through one on the parties.

32.3.3. those information that one party has explicitly in written form granted to pass on.

32.3.4. those information that the other party has righteously acquired without a breach of confidentiality and which does not violate legal regulations, public law or licensing requirements and orders.

32.3.5. those information that the party has developed independently of the other without a breach of confidentiality.

32.3.6. those information that are required by federal, national or international law or regulations or licensing requirements and orders to be published. If applicable the parties will inform each other about these requirements as soon as possible and support the other respective party to the best of their abilities to adhering to these publishing requirements.

 

33. Language of contract, court of jurisdiction, applicable law, written form

33.1. The language of contract is German. In case the contract and these terms and conditions are translated into other languages still only the German version is legally binding.

33.2. In case the customer is a merchant (Kaufmann) according to German law, a legal entity, or a public special property or does not have a general court of jurisdiction in the federal republic of Germany then the court of jurisdiction for all legal conflicts that are derived from the business relations between the customer and DOSTAL is exclusively Halle/Saale in Germany. Mandatory, legally binding regulations from other courts of jurisdiction remain untouched.

33.3. The law of the federal republic of Germany is the sole and exclusive applicable law, explicitly excluding UN and other international law.

33.4. In order to keep written form, it is sufficient to communicate via fax or email, as long as a copy of the signed declaration/contract is transmitted as well.

 

The right to make alterations is reserved.

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