General Business and Delivery Terms

MADA Marx Datentechnik GmbH
Hinterhofen 4
78052 Villingen-Schwenningen
Tel.: +49 (0)77 21 / 88 48 – 0
Email: info@mada.de
Internet: www.mada.de

Representative General Manager: Patrick Marx
Authorized representative: Thomas Singer
Registry court: Local court Freiburg
Registry number: HRB 600 578
VAT number
according to §27a VAT Act: DE 142986958

Creativity that works:
www.gildner.de

Image rights:

HagenFotoDesign – Die.Hagens

§ 1 Validity of terms

1. The following business terms apply to all current and future business relations with respect to companies, legal persons of the public law or special estate under public administrative law (ordering party).
2. All our (contractor’s) deliveries, services and offers are effected only on the basis of this general terms and conditions which are a part of all contracts concluded between the contractor and the ordering party for the services or deliveries offered. They are also valid for all future quotations, services or deliveries to the ordering party, even if they are not specified seperately once more.
3. Possible general business terms of the contracting party are herewith rejected. They are also rejected if we (contractor) do not revoke explicitly once more after reception.
4. Changes and amendments of the agreement including this general terms require the written form to be valid. Except for General Managers or Authorized Representatives, the contractor’s employees are not authorized to make any verbal arrangements deviating from this. To maintain the written form, a transmission by telecommunication is sufficient, especially by e-mail, provided that the copy of the signed declaration is transmitted.
5. In case of new machines and devices, new software and hardware, these are subject to the delivery and guarantee conditions of the respective manufacturer, licensee or supplier, in case we (contractor) are not the manufacturer. If these conditions have not been agreed effectively, the general delivery and business terms of the contractor shall apply as an alternative.

§ 2 Quotations and conclusion of contract

1. All quotations of the contractor are non-binding, as long as they are not explicitly marked as binding or contain a certain acceptance period. The contractor reserves the consideration of obligatory, due to legal or technical norms deviations from the quotations or order confirmations. The documentation related to the quotation, such as images, drawings and weight information are only approximately decisive, as far as they are not explicitly marked as binding. The contractor reserves rights of property and copyright on the subject of quotations, drawings and other documentation; these may not be accessible to third parties. Drawings and other documentation relating to quotations need to be returned upon request, if the order is not awarded to the supplier.
2. By purchasing the goods, the ordering party explains bindingly to acquire the purchased goods. The goods or software will be delivered as described by the manufacturer. Deviations therefrom have always to be recorded in written form. Verbal additional agreements do not exist.
3. The contract conclusion is subject to the correct and punctual self-delivery by our suppliers. This only applies to the case where we (contractor) are not to blame for the non-delivery. We will inform the customer about the non-availability of the service immediately. Any consideration effected will be refunded without delay.

§ 3 Price

1. In general, all prices are EURO prices and net prices. The legal VAT will be charged additionally in accordance to the current amount.
2. The prices indicated by the contractor are non-binding. They are valid for a delivery without installation ex works, packaging and shipping costs excluded. The contractor reserves the right to modify the prices due to increases of wage or raw material. Minimum order volume: EUR 25,00.
3. The non-payments due to any counterclaims by the client not confirmed by the contractor is not permitted; nor is the offsetting with such ones. The regulation § 15, Point 4 Clause 2 remains unaffected hereof.

§ 4 Regulations for delivered software

1. For software created by the contractor, the copyright protection is used. The ordering party acquires an easy, non-transferable right of use with regard to the software, according to the contractor’s quotation. The property of the software is not transferred to the ordering party. The ordering party is not authorized to make any changes to the software, to use the provided documentation for an own software creation, to give access to such documentation to third parties or to issue any type of software copies together with documents. A disposition of the acquired rights of use of the software by the contractor is excluded in any case.
2. If the software supplied by us is not a software to which we have license and ownership rights, the general business terms of the licensor/owner of the software are valid as well.

§ 5 Additional conditions for the delivery of data carriers

1. The technical indications to issue print templates are a contract component as amended.
2. The imprinting of plastic cards and transponders is realized according to the current state of the art. Processing traces, color variations as well as deviations from the litho proofs are material- and process-related. These are not faults which affect the value or the performance characteristics of the data carrier. They do not justify a refusal of acceptance, a price reduction or a compensation claim.
3. The ordering party is responsible for the content-related and formal card design and exempts the contracter from any potential third party claims in this regard.This also includes questions in relating to copyright, competition law and name rights.
4. Complaints regarding print realization have to be asserted within 14 days after delivery.
5. The contractor has the right to produce archival pieces, samples and presentation items at his own expense and to use them for these purposes. The ordering party ensures the provision of a free-of-charge usage right of existing third-party copyrights.
6. The contractor is entitled to over- and under-deliveries of up to 10% of the quantity ordered. This applies especially for cards, transponders and modules. The quantity acutally delivered will be charged.

§ 6 Software maintenance

1. Object of the software maintenance agreement are the program packages according to the software order, for which we perform the following services of this agreement against an annual payment:ftware-Auftrag, für die wir im Rahmen dieser Vereinbarung gegen Zahlung einer Jahrespauschale folgende Leistungen erbringen:
   • a. Debugging of the software and the provided (by the contractor) documentation even after liability period. b. Adjustment to legal changes, new or changed guidelines, regulations or the like, which have an influence on the agreed purpose of the software to be maintained. These adjustments are realized as far as technically possible and within a reasonable period after the publication or new introduction of the law change. c. Provision of support by telephone after conversation transfer by the user during five working days per weeks and at the time defined by us. d. Provision of support capacity for inquiries made in written form in regard of the software to be maintained.
   The above mentioned services will be charged according to our respective current cost rates. The ordering party will be informed about potential price modifications for the following year until September 29th at the latest.
2. Conditions for software maintenance:
   • a. Only the latest software version will be maintained upon written request by the user within our usual working hours.
   • b. Upon request by our employees, the user has to provide at his own expense sufficient space and the user’s hardware for an adequate time period.
   • c. The user must have completed the minimum training measures recommended by the software supplier for the software products and modules used.
3. The points 1.a, 1.b, und 2.a of this regulation only apply if program packages which are manufactuered by us are object of the software maintenance agreement.
4. The agreement for maintaining the provided software continues indefinitely. This agreement can be cancelled by both parties in written form with a three months period before the expiry of each calendar year, but at the earliest at the end of the calendar year following the start of the contract, unless otherwise defined in written form.
5. The following services are not covered by the one-time software license fee or by the payment for software maintenance and will be charged seperately:
   • Program data carriers
   • Subsequent delivery of manuals
   • Creation of program carriers
   • Shipping costs
   • Installation costs, if the installation is not realized by the customer himself
   • Datenreparaturen, -konvertierungen und -übernahme
   • Data repair, data conversion and data import
   • Support for the used operating system
   • Training/instruction
   • The user receives the latest software version, object of the contract.
6. After having received the invoice for software maintenance, the payment has to be effected in advance at the beginning of each calendar year, unless otherwise defined in written form.
7. If payment by installments via direct debit has been agreed for the maintenance, the monthly rate will be debited from the account indicated by the ordering party. A seperate invoice will not be issued. The current legal VAT will be specified on the debit slip. If the ordering party has fallen behind with a rate (return debit or the like), the entire pending amount shall become due for payment until the end of the year immediately. The contractor issues an invoice therefore which is due immediately. Thus, the payment condition “yearly in advance” is valid for the future.

§ 7 Reservation of ownership

If no regulation was made by the previous paragraphs (§§ 4, 5 and 6), the following applies:

1. The contractor reserves ownership of the goods until all claims against the ordering party arising from an ongoing business relationship have been fulfilled.
2. The ordering party is obligated to inform us immediately about an access to the goods by third parties, e.g. in case of a seizure, and also about potential damages or desctruction of the goods. The customer has to inform us immediately about any change of the product’s ownership as well as about any change of his place of business.
3. The contractor is entitled to withdraw from the contract or to reclaim the goods in case of a customer’s behaviour contrary to contract, especially in case of payment delay or a breach of duty of the previous regulations.
4. The ordering party is authorized to resell the goods in the proper course of business. He hereby assigns to us all claims equivalent to the invoiced amount which accrue to himself against a third party by reselling. We accept the assignment. The ordering party is entitled to collect the claim after the assignment.
5. We reserve the right to collect the claims ourselves in case of a non-compliance of the ordering party to its payment obligations and gets into payment arrears.

§ 8 Delivery time

1. Delivery time starts after having sent the order confirmation, but not before having clarified all details of order execution or having received a defined payment in advance or material provision. In case of a non-compliance of these conditions, the delivery time will be extended accordingly.
2. Delivery time is considered as observed:
   • a. In case of deliveries without installation, as soon as the shipment has left the factory within the delivery time agreed. If the delivery time is exceeded for reasons which are of the customer’s responsibility, the delivery time is considered as observed in case of a notification of the readiness for despatch within the delivery time agreed.
   • b. In case of delivery with installation, as soon as the installation has been effected within the delivery time agreed.
3. The delivery time will be exceeded appropriately if the non-compliance is verifiably based on mobilization, war, riots, strikes, on lockouts of the responsible persons/company divisions of the contractor, on failure of an important work piece or on other general legal principles not caused by the contractor. If the delivery time is not observed due to other reasons as mentioned with point 3 section 1, the ordering party can claim a delay compensation for each completed week of the delay of 0,5 up to 5% of the values of this particular part of the entire delivery which could not have been put into operation due to the unpunctual completion of individual corresponding pieces – provided that he is able to prove convincingly that he has suffered damages based on the delay. The ordering party can also claim the payment of delay compensation, if the circumstances mentioned in point 3 section 1 only occur after having exceeded the originally agreed delivery time. Other compensation claims of the buyer are excluded in any cases of delayed deliveries, even after expiry of a period determined by the contractor. The ordering party’s right of withdraw after unsuccessful expiry of an adequate additional period defined by the contractor remains unaffected.
4. If the dispatch or delivery is held up by the customer’s request, it is possible to charge storage fees of 0,5% of the invoice amount for each month started, beginning one month after having indicated the readiness of shipment; the storage fees are limited to 5%, unless higher costs can be certified.

§ 9 Failure classification

Unless otherwise stated in the contract, we distinguish between three types of failures:

• a. It is an operation-preventing failure, if the utilization of the software/hardware is impossible or seriously limited.
• b. It is an operation-impeding failure, if the utilization of the software/hardware is substantially limited or if those slight failures generally cause a non-negligible limitation of the utilization of software/hardware.
• c. It is a minor failure, if the utilization of the software/hardware is possible without or with irrelevant limitations.

§ 10 Service-, reaction- and restoring-times

1. If no service times have been agreed, the following times apply: Monday to Thursday from 8 AM to 4 PM and Friday from 8 AM to noon (except for public holidays at the place of performance).
2. If no reaction times have been agreed, the maintenance services are to be started immediately after having received the corresponding notification or occurrence of the incident agreed within the service times defined. If no restoring times have been agreed, the maintenance services have to be completed within a reasonable period.
3. In case of a non-compliance by the contractor in regard of the reaction- and/or restoring times agreed, he will be in default after the exceedance, even without a reminder – unless he is not responsible for the exceedance.
4. In case of contractual maintenance services, a restoring declaration is sufficient for observing the deadline in case of a successful and punctual realization, e.g. a declaration of operational readiness after a fault elimination.

§ 11 Cooperation of the ordering party

1. The ordering party will punctually provide the necessary information to the contractor. The ordering party will punctually give access to his premises and the information technological infrastructure existing there and hand over the existent documentation if this is necessary for service performance and if the legal and personally agreed conditions are fulfilled, e.g. safety inspection according to the “Sicherheitsüberprüfungsgesetz – SÜG”. If the ordering party does not fulfill his cooperation commitments, not in time or not entirely despite the contractor’s request, the contractor can submit an offer to realize these services himself instead of the ordering party. Other requirements of the contractor remain unaffected.
2. The order party has to report failures or defects, indicating all information avaible for the detection. If no other form of failure indication has been agreed, e.g. by telephone or entry to a ticket system, the failure indication will usually reported by e-mail to support@mada.de. He has to take measures within the scope of reasonability, which make a failure detection and analysis possible, e.g. by providing the existing technical information on time.
3. In case of agreed teleservices, the ordering party will provide the necessary technical equipment and give access to the system according to the specifications of a teleservice agreement.
4. The ordering party is responsible for proper data storage.

§ 12 Contractor’s right of withdrawal

Significant deterioriation of the ordering party’s credit rating entitle the contractor to demand payment in advance / provision of a security or to withdraw from the contract.

§ 13 Shipment and passing of risk

1. Shipment is basically effected at the customer’s risk from a place determined by us.
2. If the dispatch or delivery is held up by the customer’s request, we are entitled to set an adequate period of acceptance and to claim immediate acceptance after its unsuccessful expiry, as well as a compensation for default damage.
3. We determine shipping method, dispatch route and packaging according to our discretion, if no special instructions have been made by the customer. Additional costs for special requests will be charged to the customer. We do not take responsibility for the most cheap dispatch.

§ 14 Return of goods

1. Returning goods is only permitted after prior written consent of the contractor. Defective parts, except from those covered by the contractor’s warranty, have to be sent to the customer’s premises postage free.
2. In general, the contractor bears the costs for returning the goods conceded as defective as well as the subsequent shipment to the customer, whereby the contractor reserves the right to collect the goods or to organize a shipment. Arbitrary shipments, i.e. without prior written consent of the contractor, must be paid by the customer.

§ 15 Liability (warranty)

1. The choice between failure correction/subsequent improvement and new delivery/replacement delivery is granted to the contractor in any case.
2. If the subsequent improvement/fulfilment fails, the ordering party has the right to reduce (reduction of remuneration) or to withdraw from the contract. In case of only a slight lack of conformity, especially in case of insignificant defects, the ordering party though has no right of withdrawal.
3. The ordering party has to report defects according to the regulation of § 377 HGB – but in written form; otherwise the enforcement of liability claims is excluded. A punctual shipping is sufficent for keeping of a term. The ordering party is entirely responsible for proving all requirement conditions, especially for the defect itself, for the time of detection and for the punctuality of complaint.
4. The ordering party has to fulfil the contractual obligations, especially the payment conditions, unless a complaint has been reported which does not give a reason for doubting its legitimacy. Nevertheless, payments may only be retained by the customer to an extent which is proportionate to the defects occured.
5. Defect claims cannot be based on natural wear-and-tear, nor on damages resulting from incorrect or negligent treatment, excessive use, inappropriate handling etc. or such influences not defined in the contract, unless the damages are not our fault.
6. If the ordering party chooses to withdraw from the contract because of a lack of rights or material after an unsuccessful supplementary performance, he is not entitled to claim additional compensation for the defect.
7. If the ordering party demands compensation after an unsucessful supplementary performance, the goods remain with the ordering party, if bearable for him.
8. The compensation shall be limited to the difference between the purchase price and value of the defective goods. This does not apply in case of maliciously caused contract breaches by the contractor.
9. The liability period for claims and rights due to defective goods, irrespective of the legal reason, is one year. The liability period for all claims starts with the delivery of the goods. In case of used goods, the liability period is one year starting from goods’ delivery. This does not apply if the ordering party has not reported the defect on time (point 3 of this regulation).
10. In general, only the manufacturer’s product description about the goods’ condition is considered as agreed. Public statements, promotions or advertisments of the manufacturer beside of that do not constitute a contractual indication of the goods’ conditions.
11. If the ordering party receives a deficient manual, the contractor is only obliged to deliver a proper manual, and this only if the deficiency of the manual prevents a proper use.
12. We do not grant guarantees to the ordering party in a legal sense. Manufacturing guarantees remain unaffected thereof.
13. The ordering party’s right of use lapses in case of withdrawing from the contract or returning the contract goods.

§ 16 Limitations of liability

1. In case of slightly negligent breaches, the contractor’s liability is limited to the foreseeable, contractually typical and direct average damage based on the type of goods. This also applies in case of slightly negligent breaches of a legal representative or vicarious agents of the contractor. The contractor is not liable for slightly negligent breaches of insignificant contractual obligations.
2. The above- and below-mentioned liability limitations do not affect the ordering party’s claims based on product liability. Furthermore, the liability limitations shall not apply in case of physical injury or health damage attributable to the contractor or in case of the customer’s life loss.
3. Compensation claims by the ordering party based on a defect expire after one year after the goods have been delivered. This does not apply in case of intent or fraudulent concealment of a defect by the contractor.
4. The ordering party is commited for a daily data backup. The contractor is not liable for damages caused by failure to comply to this daily backup. Furthermore, the ordering party is obliged to notify the contractor immediately of potential software bugs. The contractor is not liable for errors which can be traced to the fact that an immediate report has not been effected.

§ 17 Data protection, privacy and security

1. If personal data are collected, processed or used by the contractor, he will conclude an agreement upon the customer’s request according to the legal prescriptions for order data processing.
2. The contractor ensures that all persons who play a part in executing the order, adhere to the legal regulations on the subject of data protection. The necessary obligation to maintain data privacy shall be effected not later than before starting the first activities and is proven to the ordering party upon request.
3. The ordering party is enabled to cancel the contract entirely or in part extraordinarily if the contractor does not attend to his duties culpably and within a appropriate period according to the points 8.1 and 18.2 or maintaining the contract is no longer reasonable for the ordering party due to an intentional or grossly negligent infringement of the data protection laws.
4. The parties are obliged to treat all information and company secrets confidential and especially not to pass them on to third parties or to use them in a different way than for the contractual purposes. The customer’s exchange of experiences with and within the public sector remains unaffected, just like the fulfilment of legal obligations of the customer. The obligation for a confidential treatment of company secrets obtained on the basis of the contract remain unaffected.
5. The contractor has the right to pass on confidential information only to those subcontractor whose services the ordering party has accepted explicitely, if those confidential information are necessary for the subcontractor’s service fulfilment (principle of “need-to-know“). This only applies if the subcontractor has engaged himself to confidentiality towards the contractor in advance and at least to the same extent as the contractor towards the ordering party. In this context, the disclosure of confidential information by the subcontractor needs to be excluded, unless the ordering party has given its explicit consent for a disclosure in advance.
6. Confidential information are information which could be considered as worthy of protection by third parties or are marked as confidential; this may also be information becoming known during a verbal presentation or discussion. It is allowed to use confidential information only for the purpose of contractual fulfilments. The obligation of confidentiality does not apply in case of information which are already legally known by the parties or become known beyond the contract without infringements of confidentiality obligations.

§ 18 Arbitration

1. If the parties agree on arbitral decisions in case of disputes, each party has to appoint one arbitrator within four weeks upon the opposite party’s request. The chairman of the arbitration is appointed by the president of the Higher Regional Court which is responsible for the party calling the arbitration tribunal. The president of the Higher Regional Court also appoints the arbitrator of the party which is in default with appointing the arbitrator.
2. The arbitration shall make decisions based on the delivery conditions agreed. Apart from that, §§ 1025 to 1048 of the Civil Practice Act are to be applied to the arbitral proceedings.

§ 19 Contract transferability

The ordering party and the contractor are allowed to transfer their contract rights to third parties only by mutual agreement. Purchase price claims and other claims for money are freely transferable.

§ 20 Final regulations

• The relation between contractor and ordering party are exclusively subject to German law. The regulations of the UN sales law shall not apply.
• If the ordering party is a merchant, a legal entity of public law or public-legal fund assets, the exclusive jurisdiction for all disputes of this contract is the contractor’s registered office. The same applies, if the customer has no general place of jurisdiction in Germany or his place of residence or habitual abode are not known at the time of action.
• If the contract or the terms and conditions (“AGBs”) contain regulatory gaps, the legal effective regulations which would have been agreed by the contract partners according to the economic objectives and for the purpose of these general conditions and terms will apply for closing these gaps.