General Conditions of Sale and Supply of DESIGNA Verkehrsleittechnik GmbH („DESIGNA“) (as of 01.08.2011)
1.1. These general provisions in the Conditions of Sale and Supply shall apply to all deliveries and services provided by DESIGNA and are supplemented by the following clauses on the individual types of order. In the event of contradictions, the special provisions of the following clauses for the respective individual types of order shall take priority.
1.2. DESIGNAs Conditions of Sale and Supply shall apply exclusively; we do not recognise any of the Customer's conditions that contradict or deviate from them unless we have expressly consented to their application in writing. Our Conditions of Sale and Supply shall also apply when we make a delivery, without reservation, in the knowl-edge of contradictory or deviating conditions of the Customer.
1.3. Any individual agreements that deviate from or supplement our Conditions of Sale and Supply are to be set down in writing.
2. Order, Scope of Services, Documentations
2.1. Our offers shall form the basis for our deliveries or services. Proper offers shall be effective for three months, in so far as no contractual agreement to the contrary has been made.
2.2. Offers and estimates for repair and installation works shall always be submitted sub-ject to confirmation.
2.3. With regard to cost estimates, drawings and other documents (hereinafter termed ‘Documents') DESIGNA reserves the right to assert its proprietary rights and copyrights. The documents may only be made accessible to third parties once DESIGNA's consent has been obtained and, if the order is not placed, they must be returned as soon as they are requested. Documents belonging to the Customer may be made accessible to any third parties to whom DESIGNA has transferred the order, thus imply-ing permission.
2.4. With regard to standard software, the Customer shall have the non-exclusive right to use it with the agreed performance characteristics in its unaltered form on the approved equipment.
3. Payment Terms
3.1. Payments must be made to DESIGNA's payment point without any additional costs for DESIGNA. Our invoices shall become payable within 10 days from the invoice date, unless agreed otherwise.
3.2. If, after the contract has been concluded, it becomes clear that the claim to payment is jeopardised by insufficient payment capability, in particular inadequate cred-itworthiness on the part of the Customer, DESIGNA shall be entitled to demand immediate security or cash payment, without any deduction, for all goods that have been supplied but not yet paid for, and advance payments for all goods that have yet to be supplied, as well as to withhold goods that have yet to be supplied. If the Cus-tomer does not meet the above obligations by the deadline in question, DESIGNA shall be entitled to refuse to make the delivery and to withdraw from the contract, as well as demand indemnification.
3.3. The Customer can only offset claims with undisputed counterclaims or such as have been established with legal finality. The Customer has no retention right on account of debt claims that do not emanate from the same contractual relationship.
4. Requirement to Declare Defects, Warranties
4.1. The Customer must inspect our consignments as soon as they are received to ascertain that they comply with the contract. DESIGNA must immediately be advised in writing of any shortages and wrong deliveries, as well as apparent defects, with a statement of the objections. DESIGNA must be advised of defects that only become apparent later as soon as their detection becomes possible, in the form described.
4.2. Any claims from the Customer arising out of a defect of the goods are initially re-stricted, at the discretion of DESIGNA, to repairs or the supplying of replacement goods that are free of defects. If subsequent performance fails, or if it is unaccept-able to the Customer, or if we refuse performance seriously and definitively, at its discretion the Customer can reduce the price or withdraw from the contract.
4.3. All claims derived from the defectiveness of the consignment, including any rights to indemnification, become statutebarred after 12 months from delivery, except in the case of deliberate wrongful acts. This also applies to competing similar indemnification claims, arising out of liability other than contractual liability.
4.4. No warranty claims exist for mere slight deviation from the agreed level of fitness of the consignment, or in a situation in which its usability is only slightly impaired. Warranties are also excluded for losses attributable to improper handling or use other than that provided for in the contract. Notably, this applies in instances of faulty construction work, unsuitable building land or losses occurring because of particular external effects that are not provided for in the contract, as well as instances of software errors that are not reproducible. Moreover, if the Customer or third parties make changes or carry out repairs inappropriately, no warranty claims result for the latter and the consequences thus arising.
4.5. If the defect declaration is made wrongfully, DESIGNA is entitled to demand indemnification from the Customer for costs it has incurred through the unjustified defect declaration
5.1. Adherence to delivery deadlines presupposes that all the technical questions existing between DESIGNA and the Customer have been settled and the Customer has fulfilled all the duties incumbent upon it such as, in particular, the submission of the required official certifications or authorisations, clearances or plans, and agreed back to a reasonable degree; this does not apply if DESIGNA is responsible for the delay.
5.2. Partial deliveries are permissible. DESIGNA is entitled to make deliveries before the agreed deadline. If DESIGNA is prevented from fulfilling its supply obligation in due time by circumstances that have not become detectable until after the contract has been concluded, notably by force majeure, natural disasters, labour disputes, intervention by the authorities, problems in the supplying of material, traffic disruptions, unforeseeable interruptions in operations, risks caused by conflicts of war or terrorism, unforeseeable, missing or delayed supply by upstream suppliers or by other similar factors, the supply obligation is suspended for the duration of the hindrance and in the scope of its effect.
DESIGNA must immediately inform the Customer in writing that the temporary hin-drance or impossibility of providing the delivery or service has occurred, stating the reasons for this. If the suspension of the performance obligation is not acceptable to the Customer, after the elapsing of a reasonable period to be determined by it, the Customer is entitled to withdraw from the contract. It is not necessary for a deadline to be set in the situations mentioned in legislation (§ 323 Para. 2 and 4, § 326 Para. 5 of the German Civil Code). DESIGNA is not responsible for failure to perform or delayed performance attributable to the above factors. Claiming indemnification or the refunding of expenditure is precluded. In cases of delayed performances for which the Customer is responsible, the agreed delivery periods are extended and the agreed delivery deadlines put back accordingly.
6.1. DESIGNA is liable for the provision of indemnification regardless of the legal grounds for this, only in instances of deliberate wrongful acts or gross negligence on the part of its organs or vicarious agents. The above liability exclusion for ordinary negligence does not apply to the violation of material contractual obligations. In abstract terms, material contractual obligations are such obligations whose fulfilment is mandatory to permit the proper performance of the contract, and on the observance of which a contractual partner can regularly rely. This shall not prejudice the liability for loss emanating from injury to life and limb or health and in accordance with the German Product Liability Act (Produkthaftungsgesetz). In a situation of the violation of mate-rial contractual obligations, liability is restricted to typical foreseeable losses. In-demnification claims arising out of contractual liability become statutebarred after one year from delivery, except in the case of deliberate wrongful acts. This also applies to competing similar claims, arising out of liability other than contractual liabil-ity.
6.2. Liability to pay indemnification on account of a warranty taken on by us as well as liability under the German Products Liability Law (Produkthaftungsgesetz) remains unaffected by the above provisions. The same applies to the causing of a loss emanating from the injuring of life and limb or health.
7. Cooperation Obligations of the Customer
7.1. The Customer shall support DESIGNA in the performance of the services to be provided by DESIGNA within the bounds of reasonability. In particular the Customer shall nominate a responsible contact person with representation authority during the contract period for the purpose of fulfilment of this Contract. The Customer shall support DESIGNA in the search for the causes of possible faults and urge the employees to cooperate with DESIGNA.
7.2. The Customer shall ensure through regular data backups that the risk of data loss is minimised. The Customer shall therefore be obliged to carry out data backups at least once per month in order to limit the risk of loss.
7.3. This shall not prejudice further cooperation obligations or responsibilities arising out of the legal nature of a Contract or concrete agreement with DESIGNA.
DESIGNA shall be entitled to withdraw from the Contract and possibly to demand the re-turn of the goods supplied if application is made for the institution of insolvency proceed-ings against the Customer's assets or any other inability to pay should arise.
9.1. The place of jurisdiction for all disputes arising from this Agreement shall be the court with jurisdiction over the registered head office of DESIGNA. DESIGNA shall also be entitled to take action at the head office location of the Customer. The agreement on the place of jurisdiction shall apply even when the Customer has no inland place of general jurisdiction.
9.2. The terms and conditions of this agreement shall be governed by the laws of the Federal Republic of Germany.
9.3. The contractual languages shall be German and English.
II. Provisions for the Supply of Goods and Systems
1. Delivery Terms
1.1. Unless agreed otherwise, delivery is deemed to be ‘ex works'. The risk is passed to the Customer when the object of the delivery is handed over to the party instructed with its transportation, regardless of who is bearing the costs of transportation. This applies even if we have taken responsibility for other performances such as supply, installation or assembly. Upon request from and at the expense of the Customer, consignments shall be insured by DESIGNA against the usual transportation risks.
1.2. In the event of delivery of equipment with preinstalled software from DESIGNA, the special business terms for software and licences shall additionally apply with respect to the software.
1.3. If shipment, delivery or putting into operation is delayed because of circumstances for which the Customer is responsible, the risk is passed to the Customer on the day on which readiness for dispatch is declared or on the day on which the possibility of the installation's being put into service is declared.
2. Prices and Payment Conditions
2.1. Our prices are taken to be ‘ex works' with the addition of VAT at the statutory rate. Packaging, loading and transportation costs as well as any import and customs duties shall be borne by the Customer, unless agreed otherwise.
2.2. If DESIGNA has taken on installation or assembly and if nothing to the contrary has been agreed, in addition to the agreed remuneration, the Customer shall bear all the necessary ancillary costs such as travelling expenses, the cost of transporting the tools and personal luggage, and daily allowances. The same shall apply to the con-sumption of materials for the purpose of carrying out services, e.g. the costs for packaging, loading and transport as well as any import taxes and customs duties, unless otherwise agreed.
2.3. Unless agreed otherwise, the following payment conditions apply:
30 % when the order is placed
40 % when readiness to deliver is declared
20 % after installation has been completed
10 % when acceptance is declared"
3.1. The systems are controlled via a configured host computer which forms part of the scope of supply. For trouble-free function of the systems it is absolutely essential that the Customer should send a software data catalogue with the necessary local configuration data according to the DESIGNA specifications to DESIGNA not less than two (2) weeks before the planned delivery date. Should the Customer fail to meet this obligation or meets this obligation too late, DESIGNA shall decide whether the system should be delivered on the basis of a standard configuration for the host com-puter or should not be delivered at all.
3.2. In case of delay DESIGNA is liable in accordance with "I. General Terms". Moreover, we shall be liable in a situation of delayed delivery for every full week to the extent of a flat-rate delay indemnification of 0.5 % per week, up to a maximum of 10 % of the value of the order, for the deliveries and services affected by the delay. Any claims in excess of this are precluded unless the delay is attributable to, at least, gross negligence on the part of DESIGNA, its organs or the staff involved in the fulfil-ment of the order.
4. Installation, Commissioning
Should the system installation be ordered together with the system delivery, then unless otherwise agreed in writing, the following provisions shall apply:
4.1. The Customer must take responsibility for and promptly make available, at its own expense:
all ancillary ground, construction and other work that is not sector-specific in-cluding the specialist and unskilled manpower and the building materials and tools necessary for thisthe required articles and materials, such as scaffolding, lifting gear and other devices, fuel and lubricants that are necessary for assembly and start-up,power and water at the site where they are to be used including the connections, heating and lighting,at the assembly site, for storage of the machine parts, equipment, materials, tools etc., sufficiently large, appropriate, dry and lockable premises, and suitable work premises and accommodation for the assembly staff, including sanitary in-stallations appropriate to the circumstances; moreover, for the protection of the effects of DESIGNA and the assembly staff at the building site, the Customer must take the measures it would introduce for the protection of its own effects,protective clothing and protective equipment that are necessary in the light of the specific circumstances of the assembly site.
4.2. Before the assembly work begins, without being asked, the Customer must make available the necessary information about the position of hidden electricity, gas and water conduits or similar installations, as well as the necessary information about the static situation.
4.3. Before installation or assembly commences, the material and articles that are necessary to start the work must be provided at the installation or assembly site and all the preparatory work must have advanced so far, before the commencement of the installation works, that the installation or assembly can be started in accordance with the agreement and carried out without interruption. Approach routes and the installation or assembly site must have been levelled and cleared.
4.4. If the installation operations, assembly or start-up are delayed by circumstances for which DESIGNA is not responsible, the Customer must bear the costs for waiting times and for additional travels of DESIGNA staff to a reasonable degree.
4.5. Every week, the Customer must immediately certify for DESIGNA the hours the assembly personnel have worked and the completion of the installation, assembly or start-up process.
4.6. Acceptance shall only take place if this has expressly been agreed by contract. This being the case, if DESIGNA requires acceptance of the performance after completion, the Customer must conduct it within two weeks. If this does not happen, acceptance is deemed to have taken place. Acceptance is also deemed to have taken place if use of the object of the performance - if applicable, following the completion of an agreed test phase - has commenced.
5. Spare Parts and Consumables
5.1. Unless otherwise agreed in individual cases, the terms of payment for spare parts and consumable shall be in accordance with clause "I. General Provisions".
5.2. The availability of spare parts depends on the current spare parts catalogues at the time of the order. A claim to delivery is derived only with the confirmed acceptance of a spare parts order by DESIGNA.
5.3. DESIGNA generally delivers new parts to the customer. For certain spare parts, reconditioned parts ("R parts") are available as an alternative at reduced prices and are offered as such. For R parts all claims derived from the defectiveness of the consignment, including any rights to indemnification, become statute-barred after 6 months from delivery. The reduced prices for R parts are only possible due to the continuous return of defective, repairable parts ("D parts") by the customer. If the Customer purchases R parts for replacement of a damaged part, the Customer is obliged to return the defective D part to DESIGNA within 30 days. If, during the inspection of the returned part by DESIGNA, it is discovered that a costeffective reconditioning of the returned part is possible, DESIGNA will buy the D part and credit the Customer's account with the amount according to the latest DESIGNA price list which will be sent to the Customer on request. If the Customer does not return D parts to DESIGNA or the returned D parts for the most part cannot be costeffectively reconditioned, DESIGNA shall have the right to preclude the Customer from the possibility of pur-chasing R parts at any time with effect for the future.
6. Reservation of title
6.1. DESIGNA retains ownership of all the articles supplied up until the fulfilment of all the claims to which it has entitlement, such as exist with respect to the Customer on the basis of the business relationship.
6.2. The Customer is obliged to treat the retention property carefully; in particular, at its own expense it must adequately insure it against fire, water and theft damage at re-placement value. If servicing and inspection are necessary, the Customer must con-duct these promptly at its own expense.
6.3. In the event of attachment or other interventions by third parties, the Customer shall notify DESIGNA in writing without delay and inform the attaching party of DESIGNA's title to the attached goods.
6.4. Any processing or transformation of the retention property by the Customer shall al-ways be undertaken by ourselves. If DESIGNA's ownership lapses through adjunction, it is already agreed hereby that the (co-)ownership of the Customer of the entire object shall be transferred to DESIGNA pro rata in terms of its value (invoice value.
6.5. Mortgaging or transfer of ownership by way of security are not permitted. The Customer can only sell the retention property in the normal course of business and only on condition that it receives payment from its customers or makes the transaction subject to the proviso that ownership shall not pass to the customer until the latter has fulfilled its payment obligations. Any claims arising out of resale or another legal basis relating to the retention property are hereby assigned in full to DESIGNA by the Customer as security. The Customer is authorised to collect the debts assigned to DESIGNA for their account in its own name, but this collection authorisation can be revoked if the Customer conducts itself contrary to the contract
6.6. If the Customer conducts itself contrary to the contract, notably by delaying payment, after setting a reasonable deadline for payment, we are entitled to take back the retention property. Our taking the retention property back constitutes with-drawal from the contract.
6.7. At the Customer's request, we are obliged to release the security to which we are entitled in so far as the value of our security which can be obtained exceeds the claims to be secured by more than 10%; we are free to choose which securities are to be released.
III. Special Business Terms for Service Contracts
1. Scope of Services
The following provisions shall apply to the provision of services and installation work:
1.1. The Customer must take responsibility for and promptly make available, at its own expense:
all ancillary ground, construction and other work that is not sectorspecific including the specialist and unskilled manpower and the building materials and tools necessary for thisthe required articles and materials, such as scaffolding, lifting gear and other devices, fuel and lubricants that are necessary for assembly and start-up,power and water at the site where they are to be used including the connections, heating and lighting,at the service site, for storage of the machine parts, equipment, materials, tools etc., sufficiently large, appropriate, dry and lockable premises, and suitable work premises and accommodation for the assembly staff, including sanitary installa-tions appropriate to the circumstances; moreover, for the protection of the effects of DESIGNA and the service staff at the building site, the Customer must take the measures it would introduce for the protection of its own effects,protective clothing and protective equipment that are necessary in the light of the specific circumstances of the service site.
1.2. Before the service work begins, without being asked, the Customer must make available the necessary information about the position of hidden electricity, gas and wa-ter conduits or similar installations, as well as the necessary information about the static situation.
1.3. Before service commences, the material and articles that are necessary to start the work must be provided at the service site and all the preparatory work must have advanced so far, before the commencement of the service works, that the service can be started in accordance with the agreement and carried out without interruption. Approach routes and the service site must have been levelled and cleared.
1.4. If the services are delayed by circumstances for which DESIGNA is not responsible, the Customer must bear the costs for waiting times and for additional travels of DESIGNA staff to a reasonable degree.
1.5. Every week, the Customer must immediately certify for DESIGNA the hours the assembly personnel have worked and the completion of the service process.
2. Prices and Payment Conditions
2.1. Services shall be charged at the hourly rates shown in the latest DESIGNA price list at the time of ordering, plus value-added tax at the statutory rate.
2.2. If DESIGNA has taken on services and if nothing to the contrary has been agreed, in addition to the agreed remuneration, the Customer shall bear all the necessary ancillary costs such as travelling expenses, the cost of transporting the tools and personal luggage, and secondment allowances. The same shall apply to the consumption of materials for the purpose of carrying out services, e.g. the costs for packaging, loading and transport as well as any import taxes and customs duties, unless otherwise agreed.
2.3. For service contracts with a period of more than one (1) year, DESIGNA shall be entitled to adjust the contract value, i.e. the remuneration payable by the Customer, for the first time after a period of 12 contract months as the contract values are based essentially on the wage costs applicable at the time of conclusion of the service contract. If the basic wage and/or ancillary costs laid down in the collective wage agreement change by more than 5 % by comparison with the basic wage or the last renewal value, DESIGNA shall be entitled to adjust the contract costs according to the following formula:
Kn = ( K / 100 ) x ( PL x Ln / L + PA )
Kn = New contract costs
K = Contract costs at the time of conclusion of the contract
PL = 80 % wage cost share including statutory and )
tariff allowances )
) 100 %
PA = 20 % overheads share )
L = Basic wage including statutory and tariff allowances at the time of conclusion of the contract
Ln = New basic wage including statutory and tariff allowances
The newly adjusted costs shall apply in each case from the calendar year following the exercise of the adjustment request. If the change in the basic wage and/or the tariff ancillary costs is less than 5 %, then this change shall be taken into consideration with the full percentage in the next wage and/or ancillary cost change.
If the calculated contract adjustment amounts to more than 10 % of the last remuneration payable, the Customer shall be entitled to terminate the Contract with a pe-riod of notice of three months to the end of the month.
3. Consumption of Spare Parts as Part of Services
3.1. The availability of spare parts depends on the current spare parts catalogues at the time of the order. A claim to delivery is derived only with the confirmed acceptance of a spare parts order by DESIGNA.
3.2. DESIGNA generally uses new parts for service and repair work. For certain spare parts, reconditioned parts ("R parts") are available as an alternative at reduced prices and are offered as such. For R parts all claims derived from the defectiveness of the consignment, including any rights to indemnification, become statute-barred after 6 months from delivery. The reduced prices for R parts are only possible due to the continuous return of defective, repairable parts ("D parts") by the customer. If the Customer purchases R parts for replacement of a damaged part, the Customer is obliged to return the defective D part to DESIGNA within 30 days. If, during the in-spection of the returned part by DESIGNA, it is discovered that a costeffective reconditioning of the returned part is possible, DESIGNA will buy the D part and credit the Customer's account with the amount according to the latest DESIGNA price list which will be sent to the Customer on request. If the Customer does not return D parts to DESIGNA or the returned D parts for the most part cannot be cost-effectively reconditioned, DESIGNA shall have the right to preclude the Customer from the possibility of purchasing R parts at any time with effect for the future.
Claims for damages shall be limited in their value, insofar as they do not fall under clause I. 6.2., to five times the contract sum due during a contract year in the year of the occurrence of the damages. The Client may demand an extended liability at additional charge at the time of conclusion of the Contract.
IV. General Software Licensing Terms and Conditions
1. Subject of agreement
1.1. DESIGNA hereby under the following terms and conditions and contingent on contractual payment of the agreed remuneration, grants the Customer a time unrestricted, nonexclusive and nontransferable right to utilise the Licence Material as specified in the applicable order confirmation / licensing agreement / maintenance agreement for the specific number of workstations and/or computers and/or terminals as specified in the applicable order confirmation / licensing agreement and maintenance agreement. The provisions of this clause shall apply also and in particular to software provided by DESIGNA preinstalled on hardware supplied by DESIGNA.
Host computer („server") shall refer to an individual computer to which one or more workstations have access and which controls one or more Terminals and/or Operations Control Computers. A Terminal shall refer to an individual piece of equipment that is controlled by a computer, but is not itself a host computer. Licence Material shall refer to data processing programs and/or licensed data in machine-readable form, including accompanying documentation and/or manuals.
1.3. The utilisation of the Licence Material on an additional number of workstations / computers over and above the number specified in the relevant order shall only be permissible in accordance with an additive licence negotiated in advance.
1.4. The applications correspond to the descriptions contained in the manual; there shall be no obligation to provide application functionality in excess of the aforementioned.
2. Scope of licence
2.1. The Client shall be entitled to utilise transferred applications in accordance with provisions of the system application licence certificate.
2.2. The Customer shall only be entitled simultaneously to utilise Licence Material stored on a computer, workstation or Terminal on the number of Computers/ Terminals/workstations specified in the order confirmation/licence and maintenance agreement.
Insofar as the Licence Material is stored on workstations or computers, such storage in its entirety shall be limited to the number of workstations specified in the order confirmation/licence and maintenance agreement. Before storage on additional workstations/computers, the software shall be completely deleted from other workstations/computers, so that, in total, the number of workstations/computers specified in the order confirmation/licence and maintenance agreement is not exceeded
2.3. In the event that software functionalities requiring a licence are made accessible on the host computer, these shall only be utilisable simultaneously on as many Terminals/workstations as are specified in the order confirmation/licence agreement or maintenance agreement. The scope of licence shall also extend to the required utilisation of documentation and/or manuals forming part of the Licence Material.
2.4. The Customer shall be entitled to create a copy of the machine readable Licence Material for data backup purposes. The reproduction of manuals is hereby expressly prohibited.
3. Protection of the Licence Material
3.1. The Customer undertakes to retain the protective notices, such as copyright notices and other reservations of rights contained in the Licence Material, unchanged and to affix the DESIGNA copyright notice to all copies.
3.2. The Customer undertakes not to make the licence material available to third parties, neither in its original form, nor in the form of complete or partial copies without the express written consent of DESIGNA. This shall also apply in the event of a full or partial sale or closure of the business of the Customer. Third parties shall not refer to employees of the Customer or other persons, insofar as they are located on the premises of the Customer for the utilisation of the Licence Material in accordance with this Agreement on behalf of the aforesaid.
4.1. The delivery of the licence material shall be made at the discretion of DESIGNA either on the host computer, on the workstation computer or by data transmission.
4.2. DESIGNA shall only carry out installation subject to chargeable service to be commissioned separately.
5. Fees, terms of payment
The licence fees are laid down in the price list valid at the time of conclusion of the Contract. The delivery of future upgrades / updates to higher program versions with new and/or improved functions shall be subject to a separate agreement.
6. Guarantees and Warranties
6.1. DESIGNA warrants that the licence material corresponds to the contractually agreed specifications, free from third-party rights and has no faults which nullify or reduce the serviceability in relation to these specifications. This shall not apply in case of an insignificant reduction in the value or serviceability.
6.2. In the event that errors occur during contractual utilisation of the software, the Customer shall notify DESIGNA thereof in writing without delay in a comprehensible form, indicating the appropriate information for error recognition. The Customer undertakes to provide all reasonable support to DESIGNA during the rectification of errors. A prerequisite for entitlement to error rectification shall be that the error is reproducible and can be illustrated by means of machine produced output.
6.3. DESIGNA shall after receipt of the error notification in the first instance be entitled to remedy the defect. This shall be done by making available a defect-remedied version on the Internet, making available of a data medium containing a defectremedied version or the online transfer of a defectremedied version. This shall be at the discretion of DESIGNA. Should attempts to remedy the defect prove unsuccessful, should DESIGNA refuse to remedy the defect, or should such remedy be unacceptable to the Customer, the Customer may in accordance with applicable law claim an appropriate discount or, if the utilisation restriction in view of the total performance is unacceptable to the Customer, cancel the agreement. Claims for indemnification are limited in accordance with Section 8 hereof. The same shall apply to possible claims for reimbursement of expenses.
6.4. Claims on the part of the Customer on the basis of defective goods shall not apply insofar as the Customer modifies software applications independently or has such modifications carried out by third parties without the permission of DESIGNA. Sentence 1 shall not apply if the Customer proves that the defects still in question have not been caused by application modifications carried out by the Customer or the third party.
6.5. DESIGNA shall not be liable for errors and damage that result from inappropriate or noncontractual utilisation of the licensed products.
7. Conditions of use
Each licensed DESIGNA application has been developed for deployment on specific types of machines and for operation in conjunction with specific other equipment and programs by DESIGNA. The Customer is acquainted with the essential features of the software; these correspond with the requirements of the Customer. Specific conditions of use of the Customer shall be outlined by the aforesaid in advance in writing and shall be confirmed in writing by DESIGNA. Insofar as no separate declaration is made, the relevant statements in this regard in the product information shall apply. In the event that a licensed application is utilised in conditions other than the aforesaid conditions of use, the obligation for warranty shall not apply.
8.1. Claims for damages, insofar as they do not fall under clause I.6.2., shall be limited in value to EUR 25,000.00 or - if this is higher- to 1x the licence fee for the program forming the subject of the claim or which directly caused the damage. The lower value shall apply in each case. The fees applicable at the time of the occurrence of the claims, excluding value-added tax, shall form the basis for the calculation.
8.2. DESIGNA shall be liable for the lost of data and their restoration in accordance with the general liability waiver under these General Terms and Conditions only if such a loss of data could not have been prevented by appropriate data backup measures on the part of the Client (see also clause I.7.).
9. Cancellation, utilisation prohibition
9.1. DESIGNA shall be entitled to cancel the licence without prior notice in particular when the Customer has violated the provisions of Section 2 Scope of licence and Section 3 Protection of the Licence Material.
9.2. With the coming into effect of a cancellation, irrespective of the time and reason thereof, the Customer undertakes to return the original as well as all copies and partial copies of the Licence Material to DESIGNA. In the event of Licence Material being recorded on machinereadable recording media of the Customer, return of the Licence Material shall be substituted with the complete deletion of the recorded material.