As of April 2021
1.1 All deliveries and related services of Securovin GmbH (hereinafter “Securovin”) are made exclusively on the basis of these general terms and conditions of sale (hereinafter referred to as Terms and Conditions of Sale). Securovin will not acknowledge any customer’s terms and conditions of business; even if they relate to subject matters that are not regulated by our Terms and Conditions of Sale, unless Securovin has expressly agreed to their application in writing. If and to the extent to which any contractor’s terms and conditions contain provisions on matters that are not regulated by our Terms and Conditions of Sale, only the relevant statutory provisions shall apply. Our Terms and Conditions of Sale apply, even if we accept deliveries without reservation, while being aware of a contractor’s terms and conditions, which conflict with or deviate from our Terms.
1.2 The terms of sale shall only apply to companies, legal entities under public law or special funds under public law within the meaning of § 310 para. 1 of the German Civil Code (BGB).
1.3 The terms of sale shall also apply to all future business transactions with the customer within the framework of an ongoing business relationship.
1.4 The fulfilment of the contract is subject to the review and fulfilment (including any necessary approval) of state export and import regulations. For this purpose, the purchaser must provide Securovin with the prescribed documents upon request.
1.5 All terms used are to be understood as gender-neutral throughout.
2.1 Securovin’s offers are subject to change and non-binding. With his order the customer makes an offer in the legal sense. A contract is not concluded until Securovin has confirmed the order in writing. The content of this order confirmation determines the scope of services to be provided by Securovin.
2.2 All agreements made between the customer and Securovin for the purpose of executing a contract are laid down in writing in this contract. Securovin’s sales staff are not generally authorised to make collateral agreements or to give assurances that go beyond the content of the written contract.
2.3 Securovin reserves all property rights and copyrights to illustrations, drawings, calculations and other documents; such documents may not be made available to third parties without Securovin’s prior written consent. This also applies to such documents which are not expressly designated as “confidential”.
2.4 The purchaser undertakes to comply with the applicable national, European and international anti-terrorism regulations as well as the national (Foreign Trade Act (AWG)/Foreign Trade Ordinance (AWV)) and European (at the time of publication of these GTC: Dual-Use-VO 428/2009) export control regulations. Furthermore, the Purchaser undertakes to comply with the US Export Administration Regulations (EAR) and the sanctions rules of the Office of Foreign Assets Control (OFAC) with regard to the goods and/or technical data to which the US regulations apply. If approval by the competent authorities should be required on the basis of the aforementioned legal bases, the customer undertakes to apply for approval independently and at his own expense and to inform Securovin of this.
3.1 Unless stated otherwise in the order confirmation, the prices FCA Securovin Office, Bad Kissingen, Germany, Incoterms 2010, including carton packaging and, if necessary, the costs of export processing, however, excluding value-added tax; they are shown separately in the invoice in the statutory amount on the day of invoicing. Freight costs (item 4.1) and the costs for special packaging will be invoiced separately. The customer shall bear all public charges such as any customs duties and – if applicable – the corresponding copyright levy in accordance with the German Copyright Act (UrhG).
3.2 Unless stated otherwise in the order confirmation, the net purchase price (without deduction) is due for payment within 30 days of the invoice date. If payment is made in advance, Securovin reserves the right to withdraw from the contract if payment has not been received by Securovin within 14 days of the invoice date. The legal regulations regarding the consequences of default in payment shall apply.
3.3 Securovin reserves the right to increase its prices appropriately to the extent necessary to cover costs incurred after the conclusion of the contract due to salary / wage increases by Securovin employees (e.g. due to collective bargaining) or due to an increase in material costs. Upon request, Securovin will disclose these increased costs to the customer. Conversely, Securovin will pass on cost reductions to the customer.
3.4 In the case of partial deliveries and partial services (Section 4.7), Securovin is entitled to issue partial invoices.
3.5 If payment by instalments has been agreed, the total amount owed shall become due for payment immediately as soon as the customer is substantially in arrears with the payment of an instalment.
3.6 The customer is only entitled to offsetting rights if his counterclaims have been legally established or are undisputed. The customer is only entitled to exercise a right of retention or right to refuse performance if the aforementioned conditions with regard to his counterclaims are fulfilled and his counterclaim is also based on the same contractual relationship.
3.7 Payment shall be deemed to have been made as soon as Securovin can dispose of the amount.
3.8 If Securovin is obliged to make advance payments and if Securovin becomes aware of circumstances after the conclusion of the contract under which Securovin’s claim for payment is endangered by the customer’s inability to pay, Securovin may, at its discretion, either demand security within a reasonable period of time or payment concurrently with delivery. If the customer does not comply with this request, Securovin is entitled, subject to further statutory rights, to withdraw from the contract.
4.1 Deliveries are made to FCA Herstellwerk Securovin, Friedrich-List-Str. 12, Bad Kissingen, Germany, Incoterms 2010, unless otherwise instructed in writing by the customer, Securovin will arrange for the transport of the goods by a transport company. Transportation of the goods shall be at the risk of the customer and the customer shall bear the freight costs (calculated on the basis of the net order value).
4.2 The risk of loss and damage to the goods shall pass to the customer as soon as the goods (if necessary cleared for export) have been loaded onto the means of transport provided. This also applies if partial deliveries are made or Securovin has taken over other services (e.g. dispatch or assembly).
4.3 Unless otherwise agreed, the delivery time stated by Securovin is always non-binding. Even if delivery times have been communicated as binding, Securovin shall only be liable for delays in delivery if the customer has complied in full in good time with his obligations to cooperate with regard to the processing of the order, in particular with the necessary clarification of all technical and other questions. If dispatch has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third parties commissioned with the transport.
4.4 Securovin is not liable for delays in delivery due to force majeure or acts beyond its control, such as natural disasters, operational disruptions, strikes, legal lockouts, difficulties in procuring raw materials or official orders. Furthermore, supply difficulties and other performance disruptions on the part of Securovin’s suppliers shall be deemed to be force majeure if the supplier for his part is prevented from performing the services incumbent on him by force majeure. An agreed delivery period shall be extended by the duration of the hindrance. If the hindrance lasts longer than one month, the customer is entitled to withdraw from the contract with regard to the part not yet fulfilled after expiry of a reasonable period of grace and after a further month after the occurrence of the delaying event. In this case, services already rendered by the customer are to be returned. Claims for damages are excluded.
4.5 If Securovin is in default of delivery, the customer may only withdraw from the contract after a reasonable grace period set by him has expired without result.
4.6 If the customer defaults in acceptance or violates other duties to cooperate, Securovin shall be entitled to claim the damage incurred by it, including any additional expenses. For the storage and preservation of the goods, Securovin can charge a flat rate of 0.5% of the invoice amount per month, but in total a maximum of 6% of the invoice amount, or optionally the actual costs incurred. The risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the time at which he is in default of acceptance.
4.7 Partial deliveries and services are permissible if there is no recognisable interest on the part of the customer to the contrary.
5.1 Securovin retains title to the delivered goods until receipt of all payments arising from the business relationship with the customer. In the event of breach of contract on the part of the customer, in particular default in payment, Securovin shall be entitled to demand the return of the delivered goods and Securovin shall be granted immediate access to such goods.
5.2 The withdrawal from the contract does not exclude the assertion of claims for damages against the purchaser. After taking back the delivered goods, Securovin is entitled to sell them. The proceeds of the sale shall be set off against the customer’s liabilities less reasonable costs of sale.
5.3 The customer is obliged to treat the delivered goods with care; in particular, he is obliged to insure them at replacement value at his own expense against fire, water and theft damage. If maintenance or inspection work is required, the customer must carry it out in good time at his own expense.
5.4 In the event of seizures or other interventions by third parties, the customer must inform Securovin immediately in writing. The customer shall be liable for all judicial and extrajudicial costs arising from measures that Securovin was reasonably allowed to take to safeguard its interests (including a third-party action for opposition).
5.5 The customer is entitled to resell the delivered goods in the ordinary course of business; however, he hereby assigns to Securovin all claims in the amount of the final invoice amount (including value added tax) of Securovin’s claims against his customers or third parties arising from the resale, irrespective of whether the delivered goods have been resold without or after processing.
5.6 The customer remains entitled to collect this claim even after the assignment. Securovin is, however, entitled to collect the claim itself if the customer no longer meets his payment obligations, is in default of payment or has filed an application for the opening of insolvency proceedings or has suspended payments. In such cases, Securovin may demand that the customer Securovin discloses the assigned claims and their debtors, provides all information required for collection, hands over all associated documents and notifies the debtor(s) (third parties) of the assignment.
5.7 Securovin undertakes to release the securities to which Securovin is entitled at the customer’s request to the extent that the value of the securities exceeds the claims to be secured by more than 20%; the selection of the securities to be released is the responsibility of Securovin.
5.8 If the goods are located abroad, the following applies:
5.8.1 If the goods were delivered before payment of all amounts owed by the purchaser under the contract, they remain the property of Securovin until full payment, insofar as this is permissible under the law in whose area the goods are located. If this does not permit a retention of title, but if Securovin allows other rights to the goods to be reserved, Securovin can exercise all rights of this kind.
5.8.2 The purchaser is obliged to cooperate in all measures that will affect the protection of his property right or the right to the goods replacing it.
6.1 The goods will have the agreed quality upon transfer of risk. This is measured exclusively according to the concrete written agreement on the properties, characteristics and performance characteristics of the goods.
6.2 Information provided by Securovin in sales catalogues, price lists and other information documents, as well as other descriptions of the goods shall under no circumstances constitute a guarantee for a special quality of the goods or other services; such a special quality guarantee must be provided by Securovin expressly and in writing.
6.3 Securovin reserves the right to make minor changes to the goods, including changes with regard to colour, form, dimensions and material of the goods, provided no special agreements have been made in this respect and the changes do not impair the usability of the goods for the purpose stipulated in the contract. This also applies to deviations within the scope of customary commercial practice and deviations which are due to legal regulations or represent further technical developments, as well as to the replacement of components by equivalent parts.
6.4 All safety precautions which become necessary due to special conditions at the customer’s place of business shall be taken by the customer at his own expense. This also applies if installation, assembly and commissioning are carried out by Securovin.
6.5 The warranty rights (claims for defects) of the customer presuppose that he examines the delivered goods immediately upon receipt and notifies Securovin in writing of any defects discovered immediately upon inspection or of hidden defects immediately upon their discovery, specifying the defect (§ 377 German Commercial Code (HGB)).
6.6 Securovin reserves the right, at its own discretion and free of charge, to repair, replace or replace the goods or services which show a material defect within the warranty period pursuant to Section 6.10, provided that the cause of this defect already existed at the time of the transfer of risk. Goods replaced by Securovin must be returned to Securovin at Securovin’s request.
6.7 If, for reasons for which Securovin is not responsible, the customer falsely notifies the existence of a defect, the customer shall reimburse Securovin for reasonable expenses incurred for the detection and/or remedy of the alleged defect.
6.8 Claims of the customer due to the expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded if these expenses are increased by subsequent transport of the delivered item to a place other than the agreed place of delivery.
6.9 The warranty period is 12 months from the transfer of risk. The statutory limitation periods shall continue to apply to damages that were not caused by a defect in the goods.
7.1 Securovin guarantees that the delivered goods are free of industrial property rights or copyrights of third parties in accordance with this Clause 7.
7.2 Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it due to the infringement of such rights.
7.3 In the event that the contractual use of the delivered goods infringes an industrial property right or copyright of a third party, Securovin will at its own discretion and expense modify or exchange the goods in such a way that no more rights of third parties are infringed, but the goods continue to fulfil the contractually agreed functions, or obtain the right of use for the customer by concluding a license agreement. If Securovin fails to do so within a reasonable period of time, the customer is entitled to withdraw from the contract or to reduce the purchase price accordingly.
7.4 In the event of legal infringements by goods supplied by Securovin from other manufacturers, Securovin will assert Securovin’s claims against the manufacturers and sub-suppliers on behalf of the purchaser or assign them to the purchaser at its own discretion. In these cases, claims against Securovin in accordance with this Clause 7 shall only exist if the judicial enforcement of the aforementioned claims against the manufacturers and sub-suppliers was unsuccessful or is hopeless, for example due to insolvency.
7.5 The rights under this Clause 7 do not apply if the infringement of third party industrial property rights is due to the fact that the customer has made a change to the goods not permitted under the respective contract or not approved by us or if he uses the goods contrary to the instructions for use of Securovin or combines them with programs or data processing systems not approved by Securovin.
8.1 Subject to the provisions in Section 8.4, Securovin’s liability for damages on whatever legal grounds shall be limited as follows:
8.1.1 In the event of a slightly negligent breach of essential contractual obligations, Securovin’s liability shall be limited to the amount of damage foreseeable and typical for the contract at the time the contract was concluded.
8.1.2 Securovin is not liable for the slightly negligent breach of non-essential contractual obligations.
8.1.3 Essential contractual obligations are those whose fulfilment characterizes the contract and on which the purchaser may rely.
8.2 The customer is obliged to take appropriate measures to prevent and mitigate damage. In particular, he must immediately notify Securovin of any damage or loss for which Securovin is responsible.
8.3 Securovin’s oral and written statements and information on the suitability and application of Securovin products do not release the customer from the obligation to convince himself of the suitability of the products offered for the intended purpose through his own examination and testing. Securovin is not liable for damages or futile expenses caused by a consultation which Blick has provided on the occasion of or in connection with the conclusion of a contract and which were not provided within the scope of a contractual (secondary) obligation, unless a separate written contract was concluded for the consultation or the damage or futile expenses were caused by Securovin’s intent or gross negligence. If Securovin is not liable for intentional or grossly negligent conduct of its organs or executive employees, Securovin’s liability is limited to the foreseeable, typically occurring damage.
8.4 The above exclusions and limitations of liability shall not apply to the extent that liability is mandatory by law, in particular under the Product Liability Act, for liability based on the assumption of a certain guarantee, in cases of fraudulently concealed defects and for liability based on culpably caused damage to health or physical injury or loss of life.
8.5 Insofar as Securovin’s liability is excluded or limited, this also applies to the personal liability of Securovin’s representatives, employees and vicarious agents.
8.6 Insofar as claims for damages are not subject to the limitation period due to a defect in the goods, a limitation period of 12 months applies from the beginning of the statutory limitation period. This does not apply in the case of bodily injury and damage to health, in the case of damage caused intentionally or through gross negligence and fraudulently concealed defects, with regard to liability for guaranteed quality characteristics and with regard to liability under the Product Liability Act. In this respect, the statutory limitation periods shall apply.
9.1 Insofar as the object of the delivery is software manufactured by third parties, the scope of the rights and powers granted to the purchaser shall be determined in accordance with the license terms of this third party, which shall be attached to the delivery and transmitted in advance on request. This applies in particular to software such as operating systems and comparable components of systems to be supplied. Securovin will inform the customer in advance in a suitable manner if software is supplied by third parties (e.g. by naming the third-party manufacturer in the order documents).
9.2 Insofar as software developed by Securovin is the subject matter of the deliveries (whether as part of devices or as an independent object of delivery) and the software is accompanied by license conditions, the enclosed license conditions shall apply. If the customer does not agree with these license conditions, the software including all associated documentation must be returned before first use against reimbursement of the remuneration paid for it.
9.3 If no aforementioned license conditions are enclosed with the software, the following provisions shall apply:
9.3.1 The provision of the Software for use in return for a one-off payment shall constitute a l egal purchase.
9.3.2 Securovin grants the customer a simple, non-exclusive, transferable and perpetual right to use the software developed by Securovin on a single computer system. The use of the software in the context of ASP (Application Service Providing), in network operation, in data center operation and by way of outsourcing is not permitted unless Securovin has expressly approved it in writing in advance.
9.3.3 A transfer of the right of use to a third party requires that the software is completely deleted from the purchaser’s system and that the data carrier provided by Securovin, including the complete documentation, is handed over to the purchaser of the software, the purchaser does not keep a copy of the software and the purchaser no longer uses the software himself.
9.3.4 Installation of the software is carried out by the customer.
9.3.5 The Purchaser is not permitted: a) to pass on the software or the associated documents (user documentation) to third parties or otherwise make them accessible to third parties without the prior written consent of Securovin (with the exception of complete transfer in accordance with Sections 9.3.1 to 9.3.5), b) modify the Software without prior written consent, c) create derivative works from the Software or reproduce the related documents (user documentation) or d) translate or modify the Software or the related documents or e) create derivative works. The above regulations do not apply if the user is expressly entitled to individual actions by law.
9.4 The contracting parties agree that online user documentation also fulfils the requirements for proper user documentation. Securovin is not obliged to provide the source code on which the software product is based.
9.5 All rights to the software developed by Securovin and the associated documents as well as to changes made by Securovin remain with Securovin. The software and the associated documents must be used and stored in such a way that they are adequately protected against non-contractual use, duplication and transmission.
9.6 A copy may be made for backup purposes. A reference to Securovin’s copyrights must be attached to or included in the backup copy. If the software contains a copyright notice and/or a registration number, these may not be removed.
9.7 Claims by the customer for defects in software supplied by Securovin shall only exist if the software supplied does not essentially fulfil the agreed or contractually assumed main functions or does not comply with the recognised rules of technology or is afflicted with defects which more than insignificantly reduce or cancel the value or suitability for the normal or contractually assumed use.
9.8 Errors in the software shall be remedied, unless there is a defect that considerably restricts the usability of the software and this is reasonable for the customer, exclusively by making new program versions available within the framework of continuous product maintenance. The customer is obliged to support Securovin in the detection of program errors (e.g. by sending error logs and other necessary information) on request within the scope of what is reasonable. By the delivery of a new program version the warranty period does not start again.
9.9 Even after expiry of the warranty period, the customer is not entitled to remedy or have remedied errors in the software himself without having given the customer the opportunity to remedy the defects himself within a reasonable period of time.
9.10 In all other respects, the provisions of the contract and these terms and conditions of sale apply with regard to software, in particular with regard to warranty and liability Securovin.
10.1 The contracting parties undertake to treat confidentially all commercial and technical details, other trade and/or business secrets and other confidential information of the other contracting party, which become known to them in the context of their business relations, and not to use them for any other than the purpose of the contract. The confidentiality obligation does not apply if information (i) is publicly known at the time of disclosure or becomes publicly known at a later date and this circumstance is not attributable to misconduct on the part of the receiving party; (ii) lawfully and without breach of any obligation of confidentiality to the best of the receiving party’s knowledge and belief, by any means other than those disclosed by the manifesting party or its affiliates to the receiving party; (iii) demonstrably independently developed by the receiving party; (iv) required by law to make authorities accessible or (v) required to be disclosed by a court or regulatory decision.
10.2 The contracting parties shall also oblige their employees, subcontractors, etc. accordingly.
10.3 The contracting parties may only advertise their business relationship with the prior written consent of the other party.
Insofar as Securovin has direct claims against the insurer of the customer with regard to the delivered goods as co-insured, the customer hereby gives Securovin his consent to assert these claims in his own name.
12.1 The place of jurisdiction for all disputes arising from the contractual relationship is Bad Kissingen (Germany). Securovin, however, reserves the right to sue the customer at any other legal venue.
12.2 Unless otherwise stated in Securovin’s order confirmation, Securovin’s place of business shall be the place of performance.
12.3 The legal relationship between the contracting parties shall be governed exclusively by the law of the Federal Republic of Germany to the exclusion of the conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
13.1 Without prior written consent, the customer may not assign his rights under this contract in whole or in part or otherwise transfer these or his obligations from this, provided this does not disproportionately impair the interests of the customer.
13.2 With regard to all written documents – if available – only the German text is binding.
13.3 Should individual provisions of the contract or these terms and conditions of sale be or become invalid, this shall not affect the validity of the other provisions.