OMA (from January 1st, 2014)
Extension of the General Terms and Conditions to include the extended “Oracle Master Agreement” (OMA) contract.
1. Conclusion of contract
Except for cash purchases, contracts with us are only concluded with our written order confirmation. All offers are subject to change. The conclusion of the contract is governed exclusively by these conditions, which are recognized by the purchaser by placing the order or accepting the ordered goods or services. This also applies if we do not expressly object to the purchaser’s different terms and conditions. Subsidiary agreements and changes to these conditions require our written confirmation.
2. Offer and order
Our offers are subject to change with regard to price, delivery options and delivery times. Correct and timely self-delivery remains reserved in any case. If an agreed delivery date is exceeded by more than 6 weeks and an appropriate message sent by the customer after that has passed without success, the customer can withdraw from the contract. Further claims are excluded unless otherwise agreed. In any case, claims for damages against us due to delay are limited to a maximum of 5% of the value of the delayed service. All delivery times begin on the day the order confirmation is issued. The place of delivery is generally the headquarters of our company. In any case, delivery takes place from our respective warehouse at the purchaser’s expense and risk. Unforeseen events such as force majeure, mobilization, war, labor disputes, war-like events or other unrest, delays in transport, strikes or other production interruptions release us from the obligation to deliver on time for their duration. Any claims for damages are excluded in this respect. The risk is transferred to the purchaser when the ordered goods are handed over to the person carrying out the transport. This also applies if we use our own means of transport. We are entitled, but not obliged, to insure the goods to be shipped against all kinds of transport risks at the purchaser’s expense. This has no influence on the transfer of risk. We are entitled to make partial deliveries.
3. Terms of payment
All prices are net from our office location. All shipping costs, in particular packaging, transport and transport insurance as well as statutory VAT, are borne by the purchaser. Prices and additional costs are calculated according to our price list applicable at the respective delivery time. The agreed prices are due for payment immediately upon handover of the device, unless otherwise agreed. If the generally valid list price for the purchased item or the service to be provided at the time of delivery is lower than the price stated in the underlying contract, the purchaser only has to pay the lower list price. A unilateral price increase by us is permitted provided that the list price for the devices or goods to be delivered or the list price is communicated in writing at the latest one month before the delivery date. The purchaser then has the right to withdraw from the contract by giving us a written notice within 14 days of notification of the price increase. If he does not do this, the new, increased, announced list price is deemed to have been agreed. If payments are not made within 10 days of delivery, we will charge interest due at a rate of 5% above the current discount rate of the Deutsche Bundesbank. The assertion of further damages due to delay remains unaffected. The purchaser has no right of retention towards our demands. Offsetting against counterclaims is only possible if these counterclaims are undisputed by us or have been legally established. Any claims arising from the contracts can only be assigned to third parties by the customer with our consent.
4. Acceptance
The customer is obliged to accept the ordered item or the agreed service. Upon acceptance, he must ensure that the purchased item or service is in good condition. Acceptance must take place as soon as we have delivered the item oroffered to provide the service. If acceptance does not take place within 8 days, we are still entitled to the agreed price. If the customer is in default of acceptance, he must reimburse us for the financing and storage costs incurred. If we request acceptance of the ordered items with the information that the items will be used after a two-month period and the customer does not accept the ordered items within this period, we are entitled to sell the items as best as possible by selling them privately at the expense of the customer utilize. Proceeds from the sale must be offset against the purchaser’s payment obligation after deducting any costs of use. If the customer does not accept the agreed service in whole or in part, we can demand 50% of the remuneration agreed for the service from the customer as a flat rate compensation for the costs incurred and the lost profit. If higher damages are to be claimed, this must be proven in detail. The customer is entitled to pay less if he can prove that we have suffered no damage or that we have suffered significantly less damage than the aforementioned flat-rate compensation.
5. Warranty
We assume no liability for used contractual items. The warranty is excluded to the extent permitted by law. We also provide warranties for goods delivered or services provided as follows:
- for goods
We guarantee that our deliveries are not afflicted with defects, including the lack of guaranteed properties. The warranty period is 6 months from the delivery of the goods to the customer. Our warranty obligation is limited, at our discretion, to repairs at our premises or replacement delivery. Replaced parts become our property. The transport and travel costs associated with the repair or replacement delivery are in any case borne by the purchaser, as long as this has been agreed or the purchaser is a merchant. This also applies and in particular if the repair is carried out in rooms specified by the customer. - for standard software
We guarantee that the delivered standard software conforms to the published program specifications that are valid upon delivery of the program in accordance with the respective program version, as guaranteed to us by the manufacturer. The customer is aware that, given the current state of technology, it is not possible to completely exclude errors in the program. Our warranty obligation is limited, at our discretion, to repair or replacement delivery. Replaced parts are in any case at the expense of the purchaser, provided this has been agreed or the purchaser is a merchant. In any case, our warranty claims are limited and must be asserted within 6 months of the program being handed over to the customer. After that they are statute-barred. Further warranty claims are excluded – to the extent permitted by law. - for individual software
For individual software created by us, we guarantee that the software created corresponds to the specifications agreed in writing, unless otherwise agreed. In any case, we are only liable for functional errors in the program or data carrier. Further warranty claims are excluded – to the extent permitted by law. - General
We assume no liability for lost data, programs or program parts or their damage caused by errors in a program or a program carrier. Any warranty obligation on our part expires if repairs or other work has been carried out on the defective products without our approval. We also do not guarantee that any programs or other software purchased are suitable for the customer’s intended use. In the case of repair work or replacement delivery, the same warranty applies as for the original delivery or service. If the defect can be remedied by repair or replacement delivery, the customer may demand a reasonable reduction in the purchase price or cancellation of the contract. Any defects in cash purchases or in the acquisition of usage rights against cash payment must be reported within 10 days of the purchase item being handed overnd or object of use. After this period has expired, there is no longer any warranty claim. Each purchaser is solely responsible for ensuring that the goods or the program purchased from us can run on the computer system intended for use with these goods or that the purchased goods can be used for the intended programs. We assume no liability for this unless otherwise agreed in writing.
6. Termination
Both parties can terminate the contract annually with a notice period of 3 months before the end of the contract year. Termination must be communicated in writing.
Exception
- Presence of concrete suspicions of criminally relevant activities by the customer, in particular incitement to hatred, discrimination against others based on their skin color, race, religion or ideology.
- Disregard for data protection regulations
- Delayed payment
- Use of the subject matter of the contract in violation of the law and/or contractual agreement
- Sending or publishing electronic mail under a false name or without the consent of the sender or recipient.
- Uploading racist and adult data material to news, WWW or FTP sites at manage.it.
Costs
- In the event of a breach of contract, the client will invoice the customer for the work carried out up to that point.
7. Program acquisition
We deliver programs on program carriers including their documentation, without “source code”. The customer acquires a right of use for an unlimited period of time, unless otherwise agreed. He does not acquire any ownership or intellectual property rights or copyright. The program provided is therefore a licensed program for which we grant the purchaser a non-exclusive and non-transferable license to use the program exclusively on a data processing system owned by the purchaser for an indefinite period of time. The transfer of usage rights only takes place after full payment of the agreed prices.
8. Third party property rights
Unless otherwise agreed, we assume no liability that the goods delivered by us do not infringe the industrial property rights of third parties. The purchaser is obliged to inform us immediately if such violations are reported to him. If the delivered goods or programs were built or created according to the customer’s designs or instructions, the customer must indemnify us against all claims made by third parties due to violations of industrial property rights. Regardless of the fact that we assume no liability for the violation of any third-party property rights, in such a case we will endeavor to find a regulation that is favorable for the customer for the continued use of the affected devices. If the purchaser has claims against us despite the above exclusion of liability, these claims are limited, at our discretion, to the fact that the purchaser can demand that the device be modified by us so that property rights are no longer infringed, or that we grant the purchaser a right of use or that the device or program in question is replaced by one that does not infringe third party property rights and meets the purchaser’s requirements, or that we take back the affected devices or programs and reimburse the purchaser the purchase price less an appropriate amount for use and loss of value . In any case, we are only liable up to the amount of the respective purchase price.
9. Retention of title
All goods, programs, data carriers and so on remain our property until full payment or until all of our claims against the customer have been fulfilled. If the customer installs goods supplied by us in other devices or systems, we do not lose our ownership. When processing, we become the owner (if necessary co-owner).ch of the newly manufactured items, which therefore become our reserved goods. The customer carries out any processing for us without incurring any obligations for us. A sale of the delivered goods or programs is only permitted in the orderly course of the customer’s business. The purchaser hereby assigns to us as security any claims to which he is legally entitled from the resale or from any other goods or programs supplied by us. The purchaser is revocably authorized to collect these claims. In the event of default, we are entitled to disclose the assignment. If the customer is in default, we are entitled to take delivery of the reserved goods at any time without this implying a withdrawal from the contract. In the event of any access by third parties to the reserved goods or to the claims assigned in advance, the purchaser must inform the third party of our ownership and inform us immediately, handing over all the documents necessary for an intervention. Any intervention costs are borne by the purchaser.
10. Liability
We are only liable for damages to the purchaser if we or our vicarious agents or vicarious agents are guilty of intent or gross negligence and only for direct, not for indirect or consequential damages, unless there is mandatory legal liability for this and we cannot exclude ourselves . This applies to all claims for damages, regardless of the provision on which they are based. All claims for damages against us, including those that exist against our vicarious agents or vicarious agents, expire within 1 year from the handover of the ordered goods or from the provision of our services.
11. Invalidity of individual provisions
If a provision of these terms and conditions is ineffective, it will be replaced by the effective provision that comes closest to the economic purpose of the ineffective provision. All other provisions remain in effect.
12. Place of jurisdiction and applicable law
Place of performance and place of jurisdiction is Augsburg. Only the law of the Federal Republic of Germany is applicable, with the exception of the Uniform Sales Act and the Uniform Purchase Agreement Act as well as the EU Sales Law.
13. Confirmation of the orderer, customs clearance
The purchaser is expressly advised that the goods sold to him are intended to remain in the Federal Republic of Germany and that export of these goods is only permitted with the express permission of both the German and (in the case of foreign devices) the respective foreign authorities. The purchaser assures that he has purchased the purchased goods exclusively for domestic use and only as a user and not as a professional reseller. If deliveries are made duty unpaid at the purchaser’s request, he will be liable to us for any subsequent demands from the customs administration and will release us from all claims in this respect.
