General Business Terms and Conditions of RecoScript GmbH

 

§ 1 General

(1) These business terms and conditions provide for the preparation of quotations, the rendering and carrying out of all current and future services and deliveries of the contractual parties.
(2) RecoScript shall supply and perform exclusively in accordance with the following terms and conditions. Conflicting and/or supplementary business terms and conditions of the customer shall not be recognized by RecoScript.
(3) The respective services and deliveries shall be determined in autonomous contracts to be concluded based upon these business terms and conditions. In the event of continued business relations, the general business terms and conditions shall be valid without an express renewed inclusion.
(4) Oral collateral agreements were not made by the contractual parties. Subsequent supplements or amendments to the concluded agreements shall be required to be in writing. The oral rejection of the written form requirement shall be excluded.
(5) At the latest with the acceptance of the goods or service, the business terms and conditions shall be considered to be accepted.
 

§ 2 Quotation and Contractual Conclusion

(1) Quotations of RecoScript are - particularly with regards to prices, quantities, delivery term periods, delivery facilities and additional services - not binding and without obligation.
(2) Orders shall only then be considered as accepted if they are confirmed in writing by RecoScript.

 

 § 3 Payment Terms and Conditions

(1) Delivery and performance shall take place at the prices and terms and conditions of the written order confirmation in addition to the value-added tax which is statutorily valid at the respective point in time of the delivery. If charges for running services are owed, the value-added tax rate shall be decisive which is legally valid at the point in time of the coming due of the respective claim.
(2) Only the prices shall be legally binding which are stated in the order confirmation that is based upon the agreement.
(3) In the absence of a special agreement, all prices shall be valid from the place of business of RecoScript (Gottmadingen), excluding any possible transport, packing and transfer costs.
(4) Provided that nothing else is agreed upon, the invoices are to be paid without discount 30 days after the submission of the invoice. RecoScript shall be entitled - even if there is another conflicting payment commitment of the customer - to charge its payment in accordance with § 367 I BGB [Bürgerliches Gesetzbuch/German Civil Code], first upon the costs, then upon the interest and last of all upon the main performance. RecoScript shall notify the customer with respect to the allocation.
(5) The payment shall then only be considered to have taken place if RecoScript has access to the amount.
(6) If the customer enters into payment default, then RecoScript shall be entitled to demand default interest in the amount of 5 % above the respective base lending rate of the European Central Bank (§§ 288, 247 BGB).
(7) The customer shall only be entitled to an offset if the counterclaims were determined with legal validity, are recognized or are undisputed.

 

§ 4 Delivery Terms and Conditions

(1) Delivery target dates and delivery term periods shall be determined in individual cases in a binding manner and shall be designated as such.
(2) RecoScript - even in the case of legally binding and agreed upon delivery deadlines - shall not be liable for delays in delivery and performance due to force majeure, particularly in the event of strike, lockout, governmental decrees, energy supply problems as well as due to other unforeseeable obstacles to performance which are not to be overcome by reasonable expenditures. RecoScript shall be entitled in these cases to postpone the delivery or performance for the duration of the hindrance in addition to an appropriate start-up period or to withdraw from the agreement, in whole or in part, due to the non-fulfilled part of the agreement. The entitlement to withdraw from the agreement shall not be applicable only in the cases in which RecoScript is liable for the delay.
(3) Provided that RecoScript is liable for the non-compliance with the legally binding and promised delivery target dates and delivery time periods, the customer may set an additional time period of at least 3 weeks. If RecoScript also does not make delivery with the additional time period, the customer may withdraw from the agreement. Damage compensation claims beyond this shall be excluded unless the delay is due to gross negligence or intent of the legal representative or vicarious agent of RecoScript.
(4) RecoScript shall be entitled to partial deliveries and partial performances unless this is unreasonable for the customer. Delivery without complete documentation shall also constitute a partial delivery.
 

§ 5 Retention of Ownership

(1) The goods shall remain the property of RecoScript until the complete fulfillment of all claims from the existing business association.
(2) The customer shall be entitled to use and sell the reserved goods in the proper course of business as long as it is not in payment default. Pledges or furnishing of security are not permitted. Already with the signing of the agreement, for the sake of security the customer relinquishes in full scope the retention claims derived from the subsequent sale or any other legal reason. RecoScript authorizes the customer in an always revocable manner to collect the claims relinquished to RecoScript for its invoice in its own name. Upon the request of RecoScript, the customer shall disclose the relinquishment and shall make available any possibly required information as well as submit to RecoScript relevant documents.
(3) In the event of third-party access to the reserved goods, particularly for instance with attachments, the customer is obliged to draw attention to the ownership of RecoScript and to notify RecoScript immediately of this.
(4) In the event of conduct of the customer which violates the agreement, particularly payment default, RecoScript shall be entitled to take back the reserved goods at the expense of the customer or, if applicable, to demand the relinquishment of surrender claims of the customer with respect to third parties. In the taking back of the reserved goods by RecoScript, there is no withdrawal from the agreement.
(5) Processing or modification by the customer shall always take place for RecoScript as the manufacturer, nonetheless without obligation for RecoScript. If the ownership or co-ownership of RecoScript by association expires, then it shall already apply at the contractual conclusion that the ownership or co-ownership of the customer to the unitary object shall be passed to RecoScript on a pro rata basis with respect to value (invoiced value). The customer shall preserve the ownership or co-ownership of RecoScript in this case without compensation.
 

§ 6 Rights of the Customer in the Event of Defects

(1) With respect to material goods (e.g. data carriers), RecoScript guarantees the absence of defects with respect to manufacturing and materials of the goods.
(2) With respect to software deliveries, RecoScript guarantees that the software corresponds to the specifications described in the relevant (online) program documentation and was developed with the required care and specialized knowledge. Nevertheless, it is not possible according to the current state of the art to produce software products that function in all applications and combinations flawlessly. Particularly, RecoScript shall make no guarantee that the supplied software is satisfactory for the requirements and purposes of the customer and/or is compatible with other products selected by it.
(3) With respect to the ICR/OCR software components supplied by RecoScript, process-related recognition errors (character substitutions) could occur at any time. Such errors are typical for ICR/OCR products and represent no errors in the sense of a product defect. RecoScript shall make no guarantee that the OCR error rate relating to a certain application (statistically determined) is sufficient for the requirements of the customer.
(4) Complaints due to the obviously incorrect or incomplete delivery are to made in writing within 2 weeks after the receipt of the goods. In the event of an untimely notification, the rights of the customer with respect to defects are excluded.
(5) The customer is to report the defects in writing in a comprehensible form, stating the information appropriate for the recognition of the defects. The reported defect must be reproducible or able to be indicated by mechanically produced printouts.
(6) Commercial obligations of the customer to inspect and notify of defects shall remain unaffected.
(7) Any rights of the customer shall no longer apply with respect to defects if any error occurs because the customer or a third party has modified or improved a product supplied by RecoScript.
(8) Only the direct buyer shall be entitled to customer rights with respect to defects vis-à-vis RecoScript; these are not transferable.
(9) In the event of a faulty delivery, the customer may demand first of all subsequent fulfillment (elimination of the defect or a re-delivery). RecoScript may deny the type of subsequent fulfillment selected by the customer if it is only possible with disproportionate costs.
(10) The customer may assert rights for reduced payments or rights of retention only if the subsequent fulfillment is unsuccessful or after the written determination of a notice time period with the warning of rejection. The retained amount may not exceed three times the expense required to eliminate the defect.
(11) The statutory provisions shall apply for limitation.

 

§ 7 Liability

(1) RecoScript shall be liable for intent and gross negligence, for initial incapacity, delay and impossibility, for the existence of the promised features, also with respect to the vicarious agents, nevertheless respectively limited to foreseeable damages.
(2) Furthermore, all liability is excluded, this shall also apply in the event of gross negligence for consequential damages, particularly for lost profits, operational interruption, loss of business information or data. Provided that an exclusion is not possible by law, the liability shall be limited to 5,000 €, for contracts with a scope of performance from 200 € to 1,000 €.

 

§ 8 Transfer of Risk

(1) If material goods (e.g. data carriers) are sent, then the risk shall be transferred to the customer as soon as the shipment has been transferred to the transporter or for purposes of shipping, has left the warehouse of RecoScript. If the shipment is delayed upon the request of the customer, then the risk shall be transferred to the customer with the notification of the readiness for dispatch. In a sending out by e-mail, the point in time of the sending out without an error message shall correspondingly apply. With respect to a download, the point in time of the complete data retrieval by the customer shall apply.
(2) An insuring of the goods against transport damages shall only take place upon the express wish and expense of the customer.

 

§ 9 Software and Licences

(1) All software products or parts thereof are supplied by RecoScript either on data carriers (e.g. CD-ROM), sent by e-mail or supplied as a download. RecoScript reserves the right to freely choose the form of delivery, taking into consideration the interests of the customer.
(2) The software supplied by RecoScript shall not be sold, but rather licensed. All intellectual property rights and general rights of use shall always remain with RecoScript. To the extent required, the necessary authorizations to the external works which are used in the software were acquired by RecoScript.
(3) By the acquisition of one (1) software licence, the licensee shall receive one (1) none-exclusive licence to the software, that it to say, it may use one (1) copy of the software on one (1) computer.
(4) Amendments or additions to the programs may not be made by the customer. If the customer is of the opinion that a modification and/or addition is necessary, in order to make possible or ensure the use in accordance with the provisions, it is to notify this to RecoScript. RecoScript shall make the corresponding modification itself and/or approve a change by the customer if the change is required in order to make possible or ensure the use in accordance with the provisions. The customer shall not be entitled to reverse-engineer, disassemble, decompile or otherwise try to decode the source code unless (and only to the extent) that the applicable law expressly permits this, notwithstanding this restriction.
(5) Any pledging of the software (licensing rights) is prohibited. If any rights transferred to the customer are attached, this is to be immediately reported to RecoScript. In this case, RecoScript has the right to immediately terminate any use agreement.
(6) The customer is prohibited from transferring without the prior written approval of RecoScript, with or without compensation, the software or parts thereof, the relevant documentation, relevant accompanying data, rights of use or licences to a third party or from relinquishing rights, as well as from issuing sub-licences or making other transferals. In this case, RecoScript shall have the right to immediately terminate any use agreement.
(7) Without the written approval of RecoScript, the customer may not make any copies of the software and/or the documentation placed at its disposal for itself or third parties. Regardless of this, the customer shall have the right to make respectively a back-up copy of the programs.
(8) If the software licensed by RecoScript is a static or dynamic library (possibly with USB Licence Key and accompanying data, e.g., classifiers), then the licensee is entitled to integrate it into its programs. In this (and only in this) integrated form, it may transfer the none-exclusive licence to the library (with its USB Licence Key and accompanying data) to its customers.
(9)

If no other agreements have been made in special licence contracts, the libraries licensed by RecoScript are protected against a licence-violating use with a USB Licence Key (dongle) or by means of a hardware-specific control mechanism (computer registration).

In the event of licensing with computer registration the user is requested by a corresponding program message to activate the software use after software installation and, in addition to this, to submit the computer-specific hardware identification code to RecoScript (e.g., by e-mail, phone or fax). In return, it receives - provided that a use authorization exists - from RecoScript immediately (in general, by e-mail) the relevant activation code for this computer. The entry of the activation code then makes available the use of the software to this (and only this) computer. If essential components of the computer (e.g., network controller or hard disk) are modified, then the software denies the use and gives a corresponding message. In this case, the licensee may reactivate the use of the library at RecoScript without compensation. In order to do this, the licensee must nevertheless substantiate that the computer was modified, improved, repaired or replaced. In all other cases, the customer must buy the licence again.

In the event of licensing with a USB Licence Key the dongle represents the economic value of the software it protects. For this reason the customer must buy a new licence in the event of theft or other loss of the USB Key.

(10) Software supplied without compensation for testing purposes (test and demonstration software) shall remain the property of RecoScript. The customer shall be obliged to license the test software after the expiration of an agreed upon test period or to immediately remove it from its computer and not to pass it on to third parties. RecoScript shall retain the right to equip test software that is no longer usable after the expiration of the agreed upon test period. The customer may assert no claims whatsoever deriving from this.

 

§ 10 Concluding Provisions

(1) For all legal relations between RecoScript and the customer, German law shall apply.
(2) Provisions of the international uniform sales law shall, to the extent permissible, be contracted out.
(3) With respect to the commercial customers (in accordance with the HGB [Handelsgesetzbuch/German Commercial Code]), the exclusive legal jurisdiction shall be 78224 Singen/Hohentwiel, Germany.
(4) In the event that individual or several provisions of these general business terms and conditions or further conditions and agreements based upon these general business terms and conditions should be or become invalid or a gap should appear in these general business terms and conditions, the legal validity of the remaining provisions shall not be affected by this and in place of the legally invalid provisions or for the elimination of the gap, an economically appropriate and permissible provision shall be made which the contractual parties concluding this contract had intended or, in accordance with the sense and purpose of the terms and conditions, would have intended if they had considered the legal invalidity or gap.