Terms and Conditions

1. General

1.1. These General Terms and Conditions (GTC) apply to all current and future business relationships between DEMA Machinery GmbH (DEMA) and its customers (contractual partners), provided that the latter are not consumers within the meaning of Section 13 of the German Civil Code (BGB). Other terms and conditions, in particular the contractual partner’s general terms and conditions of purchase, shall not apply, even if DEMA does not expressly object to them.

1.2. The provisions in sections 1 to 9 of these GTC apply both to the sale and/or delivery of hardware and to the sale/licensing of software. The provisions in Part A of the GTC apply to contracts for the sale and/or delivery of hardware solutions (“hardware”). The provisions in Part B of the GTC apply to contracts for the sale and licensing of software solutions. Unless otherwise agreed, the GTC in the version valid at the time of the customer’s order or, in any case, in the version last communicated to the customer in text form shall also apply as a framework agreement for similar future contracts without us having to refer to them again in each individual case.

1.3. By placing the respective order, the contractual partner accepts these General Terms and Conditions and their inclusion in the respective contract.

2.Offers and orders, right of withdrawal

2.1. Offers made by DEMA are subject to change without notice, unless the binding nature of the offer is stated in writing. We reserve the right to make technical changes, provided that these are reasonable for the contractual partner, taking into account the interests of DEMA. The documents attached to an offer from DEMA (illustrations, drawings, weight and dimension specifications, etc.) are for illustrative purposes only and generally contain only approximate information that cannot be the subject of a quality agreement and are only binding and contractual if this has been expressly agreed in writing.

2.2. Contracts are only considered concluded when they have been drawn up in writing. Verbal side agreements are not legally binding. Changes to orders must be made in writing and can only be made by persons authorized to represent the company.

2.3. As a matter of principle, DEMA does not provide the contractual partner with any guarantees. Manufacturer guarantees remain unaffected by this. Guarantees regarding product quality only become part of the contract if they are agreed in writing.

2.4. DEMA is entitled to withdraw from the respective contract if and to the extent that components that are absolutely necessary for the fulfillment of the contract with the contractual partner are not delivered on time by a supplier of DEMA, DEMA is not responsible for this, and DEMA is unable to conclude a suitable covering transaction. In this case, DEMA must immediately inform the contractual partner of the unavailability of the service and immediately reimburse the contractual partner for any consideration already paid.

3. Prices

3.1. Unless otherwise agreed, prices are quoted in euros, plus the sales tax or value added tax applicable on the date of invoicing and any other statutory delivery charges (e.g., taxes, customs duties).

3.2. All prices include only the usual packaging costs and do not include transport costs. DEMA delivers its goods in standard sales packaging suitable for normal shipping. If the contractual partner requests special packaging, the additional costs incurred will be charged separately.

4. Terms of payment, right of withdrawal

4.1. Payments by the contractual partner to DEMA are to be made within 14 days of invoicing without any deductions, unless otherwise agreed in writing. After this period has expired, the contractual partner shall be in default of payment. During the period of default, the contractual partner shall pay interest on the amount due in accordance with § 288 (1) sentence 1, (2) BGB (German Civil Code). The claim to commercial interest on arrears (Section 353 HGB) remains unaffected. The deduction of agreed discounts is not permitted if the contractual partner is in arrears with the payment of another invoice from DEMA.

4.2. DEMA does not accept bills of exchange.

4.3. If the contractual partner fails to meet its payment obligations and/or other obligations, suspends payments, or if insolvency proceedings are opened against its assets or an insolvency application is rejected for lack of assets, the entire remaining debt shall become due for immediate payment.

4.4. Upon the occurrence of debtor default and/or a significant deterioration in the contractual partner’s financial situation, DEMA shall be entitled to withdraw from all contracts with the contractual partner that have not yet been fully fulfilled and to demand the return of goods already delivered on the basis of retention of title. The assertion of further damages remains unaffected by this.

4.5. The contractual partner may only offset DEMA’s payment claims with undisputed or legally established claims. The contractual partner shall have no right of retention against DEMA’s justified payment claims that are not based on the same contractual relationship.

5. Copyright

5.1. Designs and offers produced by DEMA are protected by copyright. They may not be reproduced or made available to third parties or otherwise made accessible. Any disclosure requires the written consent of DEMA.

5.2. DEMA shall only transfer copyright usage rights to the contractual partner to the extent that this is necessary for the purpose-specific use of the work created by DEMA.

5.3. Sections 5.1 and 5.2 apply accordingly to all samples, cost estimates, drawings, and similar information of a physical and non-physical nature that DEMA has made available and/or accessible to the contractual partner.

6. Liability

6.1. DEMA and its institutional representatives and employees shall be liable within the scope of § 280 BGB (breach of contractual obligations) for delay, impossibility, tort, and other legal grounds only in cases of intent or gross negligence. In the event of culpable damage to life, limb, or health, culpable breach of cardinal contractual obligations, or fraudulent misrepresentation, liability shall be assumed within the scope of the statutory provisions. DEMA shall only be liable for simple negligence in the event of a breach of cardinal obligations (essential obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the customer may regularly rely). In this case, liability shall be limited to the typical foreseeable damage.

6.2. In the event of data loss within the sphere of the contractual partner, DEMA shall only be liable if the contractual partner can prove that it has backed up the data at least once a day on a regular basis. DEMA’s liability for data loss is limited to the cost of restoration if a backup copy no more than 24 hours old is available , unless the data loss was caused by DEMA or its employees intentionally or through gross negligence.

Otherwise, with the exception of cases of intent and gross negligence, DEMA’s liability for data loss is excluded.

6.3. The scope of DEMA’s liability under the Product Liability Act remains unaffected.

6.4. Liability for initial defects in DEMA software (rental), unless the conditions set out in Section 6.1 are met, is excluded.

6.5. Any necessary building permits and other public law approvals (e.g., operating permits) must be obtained by the contractual partner alone. DEMA is not liable for missing or unissued permits or for the validity of an issued permit.

7. Limitation period

7.1. The general limitation period for claims arising from material defects and defects of title for hardware is one year from delivery and for software (purchase) in the case of delivery on a data carrier, upon delivery of the software, and in the case of sale by download from the Internet, after notification and activation of the access data for the download area. If acceptance has been agreed, the limitation period shall commence upon acceptance.

7.2. The above limitation period also applies to contractual and non-contractual claims for damages by the customer based on a defect in the hardware or software. Claims for damages by the customer pursuant to Section 6.1 and pursuant to the Product Liability Act pursuant to Section 6.3 shall become time-barred exclusively in accordance with the statutory limitation periods.

8. Confidentiality

8.1. If the parties conclude a separate confidentiality, secrecy, or similar agreement, this agreement shall take precedence over the General Terms and Conditions in the event of conflicting provisions.

8.2. In the event that no such agreement is concluded, the parties agree as follows:

If one party receives written information from the other party that is marked “confidential” or “protected” or with a similar designation, or if one party receives information that the receiving party knows or should know is confidential or protected, the receiving party undertakes to use this information only in connection with the performance of the contract. In addition, the receiving party agrees to treat such information in the same manner as its own confidential information and to use commercially reasonable efforts to protect the confidentiality of such information. The obligation to treat information as confidential shall not apply to information that has been disclosed in publicly available sources or is in the lawful possession of the receiving party without any obligation of confidentiality. In the event that the receiving party is required to disclose the confidential information by court order or by operation of law, the receiving party hereby agrees to notify the disclosing party prior to the required disclosure. The confidentiality obligations of this paragraph shall apply during the term of the Agreement and for a period of two (2) years after its termination or expiration. The parties shall return or destroy confidential information of the other party upon request.

9. Place of performance, place of jurisdiction, applicable law

9.1. The place of performance is Hamburg.

9.2. The place of jurisdiction is Hamburg. This shall also apply if the contractual partner does not have a general place of jurisdiction within the Federal Republic of Germany.

9.3. The contracts concluded between DEMA and the contractual partner are subject exclusively to the law of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded. Insofar as clauses defined in the Incoterms are agreed, the Incoterms in their latest version shall apply.

Part A: Special provisions for the sale of hardware

10. Delivery times

10.1. Since DEMA itself is not the manufacturer of the components it processes, binding delivery times can only be specified for goods already in DEMA’s warehouse. Otherwise, delivery dates are only estimated and not binding. DEMA is obliged to notify the contractual partner immediately in writing of any expected delays in the delivery date.

10.2. If a promised estimated delivery date is delayed to an extent that is unreasonable for the contractual partner, the latter has the right to set DEMA a reasonable grace period and, if this grace period expires without result, to withdraw from the contract in whole or in part. Claims by the contractual partner beyond the legal consequences of withdrawal are excluded, including claims for damages due to non-performance, unless the damage is based on an intentional or grossly negligent breach of duty by DEMA or a legal representative or vicarious agent of DEMA. Excluded from this exclusion of liability are claims for damages resulting from injury to life, limb, or health based on a negligent breach of duty by DEMA or an intentional or negligent breach of duty by a legal representative or vicarious agent of DEMA.

10.3. The estimated delivery time specified in the contract shall be extended appropriately in the event of circumstances beyond DEMA’s control and not attributable to a breach of duty on the part of DEMA. This applies in particular to operational disruptions, strikes, lockouts, non-deliveries by upstream suppliers, and delivery delays and performance difficulties caused by pandemics and/or war.

10.4. If binding delivery deadlines have been agreed in the contract, compliance with these deadlines requires that the contractual partner fulfills any obligations to cooperate incumbent upon it in full and in a timely manner.

11. Force majeure

Neither party shall be liable for the non-fulfillment of its obligations under a contract or a service description if such non-fulfillment is due to causes beyond the reasonable control of a party, including, but not limited to, force majeure, pandemics, epidemics or other general health impairments, official instructions or orders, including but not limited to travel and transport restrictions or border closures, terrorist acts, man-made or natural disasters, material shortages, strikes, delays in transportation, or force majeure. The performance period for such obligations shall be extended by the period lost due to such cause.

12. Shipping and transfer of risk

12.1. Shipping shall be at the expense and risk of the contractual partner. Transport insurance for shipment to the place of delivery specified by the contractual partner shall be taken out by DEMA to cover the agreed price and invoiced separately to the contractual partner, unless the customer expressly excludes such insurance in writing.

12.2. Partial deliveries by DEMA are permitted. Section 266 of the German Civil Code (BGB) is waived in this respect.

13. Retention of title

13.1. The items delivered by DEMA remain the property of DEMA until the agreed price has been paid in full and all claims resulting from the business relationship with the contractual partner have been settled. This also applies if individual or all claims by DEMA are included in a current invoice and the balance has been struck and acknowledged.

13.2. The items subject to retention of title may not be sold or pledged to third parties, transferred as security or otherwise encumbered before the secured claims have been paid in full. If the goods are seized or confiscated, the contractual partner is obliged to inform DEMA immediately and shall bear all costs associated with the release of the items.

13.3. In the event of breach of contract by the contractual partner, in particular in the event of non-payment of due payment claims by DEMA, DEMA shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the delivered items on the basis of the retention of title.

13.4. The contractual partner is obliged to treat the items made available to it with care until the contractual partner’s acquisition of ownership subject to a condition precedent and, in particular, not to make any unauthorized changes. If maintenance (hardware) is necessary, the contractual partner must carry this out at its own expense.

14. Warranty

14.1. If the delivered goods are defective, DEMA may choose between remedying the defect or delivering a defect-free item.

14.2. If the subsequent performance pursuant to Section 14.1 fails or is unreasonable for the contractual partner, or if DEMA refuses to provide subsequent performance, the contractual partner shall be entitled, in accordance with applicable law, to withdraw from the contract, reduce the purchase price, or demand compensation for damages or reimbursement of its futile expenses. However, the special provisions of Section 6 of these General Terms and Conditions shall apply to claims for damages by the contractual partner.

14.3. The contractual partner must inspect the goods for obvious defects immediately upon receipt and notify DEMA of any such defects without delay, otherwise any warranty for these defects is excluded. The same applies if such a defect becomes apparent at a later date. Section 377 of the German Commercial Code (HGB) applies.

15. Installation

15.1. If installation is carried out by DEMA at the contractual partner’s premises or on behalf of the contractual partner at another location, all customer requirements must be met before the delivery date (e.g., cable work, telephone, structural measures). Any additional costs incurred as a result of this work not being carried out on time and/or professionally shall be borne by the contractual partner.

15.2. If special personal safety measures (e.g., helmet, safety shoes) are required at the installation site, the contractual partner shall provide the equipment.

15.3. If special medical requirements are necessary at the installation site, the contractual partner must notify this in writing when the contract is concluded.
If special certificates, visas, work permits, or similar are required at the installation site, this must be notified in writing when the order is placed.
The costs for the measures mentioned in sentences 1 and 2 shall be borne by the contractual partner.

Part B: Special provisions for the sale/licensing of software

16. Software transfer

16.1. A separate license is required to use DEMA’s software products, which the contractual partner can request and, if necessary, purchase atcontact@demagmbh.de (“software license”). The contractual partner shall receive a license key exclusively for the use of the software as specified in more detail in the General Terms and Conditions, the offer, the software license, and the user documentation. The use of AI-based software modules (“AI-SM”) is additionally subject to the “Additional Terms and Conditions for the Use of AI-Based Software Modules” (“AI Terms and Conditions”), which are attached to the respective offer as an appendix.

16.2. The nature and functionality of the software are conclusively determined by the offer and the product description, which is regulated or attached to the respective offer. The information contained therein is to be understood as a description of services and not as guarantees. A guarantee is only granted if it has been expressly designated as such.

16.3. Installation and configuration services are generally not included in the scope of services.

16.4.The contractual partner is only entitled to software maintenance and software modifications if a corresponding contract has been concluded with DEMA.

17. Granting of rights

17.1. Upon full payment of the fee in accordance with Section 4, the contractual partner shall receive a non-exclusive right to use the software to the extent granted in these General Terms and Conditions and the respective offer or software license. The software may only be used simultaneously by a maximum number of natural persons corresponding to the number of licenses purchased by the contractual partner. Permitted use includes the installation of the software, loading it into the working memory, and use by the contractual partner in accordance with its intended purpose. The number of licenses and the type and scope of use are otherwise determined by the respective offer or software license. Under no circumstances shall the contractual partner have the right to rent out or otherwise sublicense the purchased software, to reproduce or make it publicly available in a wired or hardware-bound or wireless manner, or to make it available to third parties for a fee or free of charge.

17.2. If the right of use granted in accordance with Section 17.1 is limited in time in the offer or the software license, the contractual partner is not granted a permanent right of use, but rather a right of use limited to the term of the software license. In this case, the contractual partner is obliged to discontinue use of the software after the software license has expired. After the software license has expired, DEMA may require the contractual partner to delete the corresponding software and other program copies and to destroy the documentation, materials, and other documents provided. In addition, the contractual partner is obliged to completely and permanently delete all installed program copies and any stored documentation from all of its servers. Any use of the software after the software license has expired is prohibited.

17.3. The contractual partner is entitled to make a backup copy if this is necessary to ensure future use. The contractual partner shall visibly affix the note “backup copy” and a copyright notice of the manufacturer to the backup copy created. Furthermore, the contractual partner is only entitled to reproduce, edit, or decompile the software if this is permitted by law and only if the information required for this purpose is not made available by DEMA at the request of the contractual partner.

17.4. If the contractual partner uses the software to an extent that exceeds the acquired rights of use qualitatively (with regard to the type of permitted use) or quantitatively (with regard to the number of licenses acquired), they shall immediately acquire the rights of use necessary for permitted use. If they fail to do so, DEMA shall assert its rights.

18. Updates/Upgrades

18.1. The contractual partner has the option of agreeing to the provision of updates or upgrades for certain software products for a fee over a specific period of time. However, within the scope of such agreements, the contractual partner is not entitled to the provision of specific updates or upgrades or other types of troubleshooting, but is given the opportunity to receive updates or upgrades developed by DEMA for the software products over a specific period of time.

18.2. Insofar as updates or upgrades are delivered to the contractual partner, the contractual partner’s claims for defects with regard to the innovations contained therein are determined in principle in accordance with Section 20.

18.3. The contractual partner acquires the same rights of use for the updates or upgrades as for the underlying software product, i.e., if the customer acquires time-limited rights of use for the software products, the contractual partner also acquires time-limited rights of use for the associated updates or upgrades.

19.Security measures, audit rights

19.1. The contractual partner shall take appropriate measures to protect the software from access by unauthorized third parties. In particular, all copies of the software must be stored in a secure location.

19.2. Upon request, the contractual partner shall enable DEMA to verify the proper use of the software, in particular to check whether the contractual partner is using the program qualitatively and quantitatively within the scope of the licenses acquired by it. To this end, the contractual partner shall provide DEMA with information, grant access to relevant documents and records, and enable DEMA or an auditing company designated by DEMA and acceptable to the contractual partner to review the hardware and software environment used. DEMA may carry out the audit on the contractual partner’s premises during its regular business hours or have it carried out by third parties who are bound to secrecy. DEMA shall ensure that the contractual partner’s business operations are disrupted as little as possible by the on-site inspection. If the inspection reveals that the number of licenses purchased has been exceeded by more than 5% (five percent) or that the software is being used in any other way that is not in accordance with the contract, the contractual partner shall bear the costs of the inspection; otherwise, DEMA shall bear the costs.

20. Warranty (purchase)

20.1. DEMA warrants the agreed quality and that the contractual partner can use the software without infringing the rights of third parties. The warranty for material defects does not apply to defects resulting from the software being used in a hardware and software environment that does not meet the requirements specified in the offer or product description, or to changes and modifications made to the software by the contractual partner without being authorized to do so by law, these GTC, the software licenses, or prior written consent.

20.2. The contractual partner must check the software for obvious defects immediately upon receipt and notify DEMA of any such defects without delay, otherwise any warranty for these defects is excluded. The same applies if such a defect becomes apparent at a later date. Section 377 of the German Commercial Code (HGB) applies.

20.3. In the event of a material defect, DEMA shall initially be entitled to subsequent performance, i.e., at its own discretion, to remedy the defect (“repair”) or to deliver a replacement. In the context of the replacement delivery, the contractual partner shall, if necessary, accept a new version of the software, unless this leads to unreasonable impairments. In the event of defects of title, DEMA shall, at its own discretion, either provide the customer with a legally flawless possibility of using the software or modify it in such a way that no third-party rights are infringed. DEMA is entitled to provide the warranty at the contractual partner’s premises. DEMA shall also fulfill its obligation to remedy defects by making updates with an automatic installation routine available for download on its website and offering the contractual partner support (e.g., via remote maintenance) to solve any installation problems that may arise.

20.4. The contractual partner’s right to reduce the purchase price or withdraw from the contract at its discretion in the event of two unsuccessful attempts at repair or replacement delivery remains unaffected. There is no right of withdrawal in the case of minor defects. If the contractual partner claims damages or reimbursement of futile expenses, DEMA shall be liable in accordance with Section 6.

21. Maintenance (rental)

21.1. DEMA warrants that the contractually agreed quality of the software will be maintained during the term of the contract and that no third-party rights prevent the contractual use of the software. DEMA shall remedy any material defects and defects of title within a reasonable period of time. DEMA shall also fulfill its obligation to remedy defects by making updates with an automatic installation routine available for download on its website and offering the contractual partner telephone support to resolve any installation problems that may arise.

21.2. The contractual partner is obliged to notify DEMA in writing of any defects in the software immediately after their discovery. In the case of material defects, this shall be done by describing the time of occurrence of the defects and the detailed circumstances.