Allgemeine Geschäftsbedingungen
Sensit! GmbH
Wird Vorbehaltsware mit anderen, nicht Sensit gehörenden Sachen untrennbar verbunden oder vermischt, so erwirbt Sensit Miteigentum an der neuen Sache im Verhältnis des Wertes der Vorbehaltsware (Rechnungsendbetrag) zu den anderen verbundenen oder vermischten Sachen im Zeitpunkt der Verbindung oder Vermischung. Wird die Vorbehaltsware in der Weise Verbunden oder vermischt, dass die Sache des Kunden als Hauptsache anzusehen ist, sind der Kunde und Sensit sich bereits jetzt einig, dass der Kunde Sensit anteilsmäßig Miteigentum an dieser Sache überträgt. Sensit nimmt diese Übertragung an.
General Terms and Conditions
Sensit! GmbH
This is a translated version of the German general terms and conditions to support our worldwide customers. The German Terms and Conditions always apply.
1 General and scope of application
1.1 Sensit! GmbH (hereinafter: “Sensit”), Dianastrasse 21, 14482 Potsdam, registered in the commercial register of the Potsdam District Court under HRB 32445, represented by the managing director Benjamin Heese, offers innovative solutions in the field of haptic feedback technology for its customers. This includes the sale and delivery of hardware with software implemented in the hardware (hereinafter: “Software”, the system consisting of hardware and software hereinafter the “Contractual Goods”). Sensit’s offers are aimed exclusively at customers who are entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), i.e. natural or legal persons or partnerships with legal capacity who, when concluding a legal transaction, are acting in the exercise of their commercial or independent professional activity (hereinafter “Customer”, together with Sensit the “Parties”).
1.2 These General Terms and Conditions (hereinafter “GTC”) apply to all contracts between Sensit and its customers. The scope of these GTC is limited to entrepreneurs within the meaning of § 14 BGB.
1.3 Sensit will update these GTC from time to time. The contractual relationship between the parties shall be governed by the GTC in the version valid at the time of the conclusion of the contract. If a customer extends its existing contract, the GTC shall apply in the version valid at the time of the contract extension. Sensit shall inform its customers of the respective valid version of these GTC when the contract is concluded or extended.
1.4 General terms and conditions of a customer shall not apply. If a contract is concluded between the parties, these GTC of Sensit shall apply exclusively. This shall also apply if Sensit does not expressly object to Customer’s general terms and conditions or performs services without reservation in the knowledge that Customer’s terms and conditions conflict with or deviate from these GTC.
1.5 Agreements between the parties that deviate from or supplement these GTC must be made in writing. This also applies to the amendment or revocation of this clause.
2 Conclusion of contract and scope of services
2.1 A contract between the parties is concluded by the mutual signing of a separate agreement (the “Contract”).
2.2 The parties shall set out the scope of services and the obligations of the parties in the Contract. These GTC supplement the Contract. They shall apply insofar as they contain provisions that are not contained in the Contract or are not waived.
3. Reservation of right of amendment
3.1 For good cause, in particular in the event of changes in the legal situation, supreme court rulings, software or production and market conditions, Sensit may notify Customer of an amendment to these GTC, indicating the material changes in an existing contractual relationship, provided that the amendment is reasonable for Customer.
3.2 Sensit shall notify Customer of the amendment in writing at least one month before the planned effective date.
3.3 The amended GTC shall be deemed agreed if Customer does not object to the amendment within one month after receipt of the notification and Sensit has specifically pointed out this consequence to Customer upon notification of the amendments.
3.4 In deviation from the above provisions, changes to the content of the services agreed with Customer shall require Customer’s express consent.
4 Prices and terms of payment
4.1 Unless otherwise agreed in the contract between the parties, the prices and payment terms of Sensit’s price list shall apply in the version valid at the time of conclusion or extension of the contract.
4.2 All prices quoted by Sensit are net prices plus statutory taxes, import duties, fees, freight and packaging costs and other public charges. Accordingly, Customer shall bear all duties and taxes levied by any national, federal, state or local authority in connection with this Agreement (in particular in the event of export of the Software or its use in whole or in part outside the country of original purchase), except for taxes on Sensit’s sales, income or profits.
4.3 Any payments owed under the contract shall be made to Sensit within 14 days of invoicing. The deduction of a discount requires a written agreement between the parties.
4.4 If it becomes apparent after conclusion of the contract that the payment claim is jeopardized by the customer’s inability to pay, Sensit may refuse performance owed under the contract (§ 321 BGB). The right to refuse performance shall not apply if the counter-performance is effected or security is provided for it.
5. Reservation of price adjustment
5.1 Sensit reserves the right to pass on to Customer any changes in costs in connection with the performance of the contract (taxes, freight and packaging or other third-party costs) after conclusion of the contract.
5.2 Such a price adjustment shall take place at the earliest 3 months after conclusion of the contract and one month after written notification by Sensit to Customer.
6 Retention of title
6.1 The contractual goods delivered to Customer (hereinafter: “Reserved Goods”) shall remain the property of Sensit until full payment of the purchase price and any other present and future claims of Sensit arising from the contract between the parties (hereinafter: “Claims”).
6.2 Customer shall be obliged to treat the goods subject to retention of title with care and to insure them adequately at its own expense against fire, water and theft at replacement value. If maintenance and inspection work becomes necessary, the customer must carry it out in good time at his own expense.
6.3 Until the claims have been paid in full, the customer is not authorized to pledge the reserved goods to third parties or to assign them as security.
6.4 If goods subject to retention of title are sold to third parties, the following shall apply.
a) Customer hereby assigns to Sensit the claims against third parties arising from the resale for security purposes. Sensit accepts the assignment.
b) In addition to Sensit, Customer is authorized to collect the assigned claims for its own account in its own name on behalf of Sensit as long as Sensit does not revoke this authorization. Sensit shall not assert the claims itself and shall not revoke the authorization to collect as long as Customer duly meets its payment obligations.
c) If Customer acts in breach of contract, in particular if it is in default of payment, Sensit may demand that Customer name the assigned claims, the respective debtors and other information, as well as surrender all documents that Sensit requires to assert the claims.
6.5 Any processing or transformation of goods subject to retention of title by the customer shall always be carried out for Sensit. If the goods subject to retention of title are processed with other items that do not belong to Sensit, Sensit shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title (final invoice amount) to the other processed items at the time of processing. In all other respects, the same shall apply to the new item created by processing as to the reserved goods.
If goods subject to retention of title are inseparably combined or mixed with other items not belonging to Sensit, Sensit shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title (final invoice amount) to the other combined or mixed items at the time of combination or mixing. If the goods subject to retention of title are combined or mixed in such a way that the Customer’s item is to be regarded as the main item, the Customer and Sensit hereby agree that the Customer shall transfer co-ownership of this item to Sensit on a pro rata basis. Sensit accepts this transfer.
6.6 In the event of seizure of the goods subject to retention of title by third parties or other interventions by third parties, the customer must point out Sensit’s ownership and notify Sensit immediately in writing. Customer shall be liable to the extent that the third party is unable to reimburse the judicial or extrajudicial costs incurred in this connection.
6.7 Upon customer’s request and to the extent that the realizable value of the securities exceeds the value of Sensit’s outstanding claims by more than 10%, Sensit shall release securities at its own discretion.
7 Provision of Software; Obligations of Customer
7.1 With the transfer of the contractual goods, Sensit shall also permanently transfer to Customer the copy of the software embedded in the hardware [as well as the user documentation ] under the terms of use described in Section 8, unless otherwise agreed between the parties in the contract. Customer has no claim to the transfer and use of the source code of the software.
7.2 Which software components and software solutions are the subject of the contract and under which conditions they are provided and used shall be agreed by the parties in the contract concluded between them.
7.3 Customer shall inform Sensit if certain requirements must be met for the market approval of the software. Customer shall ensure that export regulations relating to the Software are not violated. Customer undertakes to comply with the applicable export regulations and to notify Sensit immediately of any export restrictions.
7.4 The customer undertakes not to use the software or its components in products or systems that represent a security risk or can be used for illegal purposes. Customer shall not use the Software without Sensit’s express authorization in critical infrastructures or environments in which a failure could lead to significant damage. Customer shall ensure that the Software is used in accordance with all relevant security standards and is not used in unauthorized or insecure contexts. In case of doubt regarding the security or permissibility of the use or suitability of the Software for use in a particular environment, Customer shall immediately consult Sensit.
8 Rights of use
8.1 The Software is protected by copyright. The sole owner of all intellectual and industrial property rights is Sensit.
8.2 Upon full payment of the claims, the customer shall receive a simple and permanent right to use the software to the extent provided for in the contract between the parties. Prior to this, the data carriers [as well as the user documentation] with the reserved goods are subject to retention of title (cf. Clause 6). Permitted use includes installing or downloading the software, loading it into the working memory, carrying out test runs, monitoring the software within the scope of the monitoring functions, creating backup copies and decompiling the software within the scope of § 69f UrhG. The type and scope of the permitted use shall otherwise be determined in accordance with the contract.
8.3 In particular, the customer is entitled to permanently transfer the purchased software copy to its (end) customers, taking into account the agreed license and usage conditions. The software may only be passed on in full, as it was handed over to the customer. The software may only be passed on as part of the hardware and software system. The software may not be passed on in isolation. Furthermore, the software may only be passed on if the customer simultaneously relinquishes his own rights of use.
8.4 The customer shall not be entitled to modify, lease or otherwise sublicense the purchased software, to reproduce or make it available to the public by wire or wireless means or to make it available to third parties for use in excess of the above provision, whether in return for payment or free of charge.
8.5 Copyright notices, serial numbers and other features serving to identify the program may not be removed or altered from the contractual software.
9 Warranty
9.1 In the event of material defects or defects of title, Sensit shall be obliged, at its own discretion, to repair or replace the software free of charge. A defect shall also be deemed to have been remedied if Sensit provides Customer with temporary solutions, whether software-based or by means of instructions, which remedy the defect. In all other respects, the statutory provisions shall apply to Customer’s warranty rights, unless otherwise agreed below.
9.2 The customer shall only be entitled to claims for defects if he has complied with his statutory obligation to inspect and give notice of defects (§ 377 HGB). Claims by the customer due to obvious defects such as incorrect deliveries, visible damage or incorrect quantities must be asserted in writing immediately, at the latest within five working days of receipt of the delivery. Claims of the customer due to hidden defects must also be asserted in writing to Sensit immediately, at the latest within five working days after discovery.
10. Liability
10. 1 Sensit is liable for damages in case of (i) intent and gross negligence of Sensit or its legal representatives or vicarious agents, in case of (ii) simple negligence of Sensit or its legal representatives or vicarious agents for damages resulting from injury to life, body or health or in case of (iii) simple negligence of Sensit or its legal representatives or vicarious agents for damages resulting from the breach of a material contractual obligation (i.e. an obligation which forms the basis of this contract, which was decisive for its conclusion and on the fulfillment of which Customer may rely; “cardinal obligation”). In the event of a breach of a material contractual obligation, the liability of the parties shall be limited to compensation for the damage foreseeable and typically occurring at the time of conclusion of the contract.
10.2 Any contributory negligence on the part of the customer shall be taken into account.
10.3 Customer is obliged to notify Sensit immediately in writing of any damage within the meaning of the above liability provisions.
10.4 This liability provision is exhaustive. It shall apply with regard to all claims for damages, irrespective of their legal basis, in particular also with regard to pre-contractual or ancillary contractual claims. It shall also apply in favor of Sensit’s legal representatives and vicarious agents if claims are asserted directly against them.
11 Limitation period
11.1 Warranty claims due to material defects or defects of title as well as other claims of the customer based on a breach of contractual obligations shall become time-barred within one year from the start of the statutory limitation period. This shall not apply if (i) liability is asserted for damages arising from injury to life, body or health, and (ii) other damages are asserted which are based on a grossly negligent or intentional breach of duty.
11.2 Withdrawal or reduction shall be ineffective if the claim for performance or the customer’s claim for subsequent performance is time-barred.
11.3 Claims arising from the Product Liability Act remain unaffected.
12 Offsetting, retention; reduction
12.1 Customer shall have a right of set-off, reduction and/or a right of retention vis-à-vis Sensit only if its respective counterclaim is undisputed, has been legally established or has been recognized by Sensit. Excluded from this is the right of the customer to reclaim remuneration not actually owed.
12.2 Furthermore, Customer may only exercise a right of retention if the counterclaim is based on the same contractual relationship.
13 Confidentiality
13.1 The parties undertake to keep secret for an unlimited period of time and beyond the termination of this contract all confidential information that comes to their knowledge in the course of the contractual relationship and that they have already obtained, and – unless this is necessary to achieve the purpose of the contract – not to pass it on or use it in any other way. Confidential information is all information and documents of the respective other party that are marked as confidential or are to be regarded as confidential due to the circumstances, in particular information about operational processes, business relationships, other trade and business secrets, know-how, all work results and the business model of Sensit.
13.2 Excluded from this obligation is such confidential information
a) which were demonstrably already known to the other party at the time of the initiation of the contract or subsequently become known by a third party without violating a confidentiality agreement, statutory provisions or official orders;
b) which were publicly known, insofar as this is not based on a breach of this contract;
c) which must be disclosed due to legal obligations or by order of a court or authority. To the extent permissible and possible, the party obliged to disclose shall inform the other party in advance in this case and give it the opportunity to take action against the disclosure.
13.3 Any disclosure of confidential information to third parties requires the express written consent of the other party, unless expressly agreed otherwise.
13.4 The parties shall ensure by means of suitable contractual agreements that the employees and contractors working for them also refrain for an unlimited period of time from any exploitation or disclosure of confidential information. The parties shall only disclose confidential information to employees and contractors to the extent that they need to know the information for the performance of this contract.
13.5 Customer agrees that Sensit may publish the cooperation between the parties for advertising purposes. Customer authorizes Sensit to use Customer’s company logo in this context. Customer may revoke its consent at any time with effect for the future by written notice to Sensit.
14. Final provisions
14.1 Should individual provisions of these GTC be or become invalid or unenforceable in whole or in part or not contain a necessary provision, this shall not affect the validity of the remaining provisions. In place of the invalid or unenforceable provision or to fill the loophole, the legally permissible provision that corresponds as closely as possible to what the parties would have intended or that would have been agreed by the parties in terms of meaning and purpose if they had considered the invalidity or unenforceability of the provision in question or the loophole shall be deemed to have been agreed with retroactive effect.
14.2 If these GTC refer to a written form or communication, the sending of an e-mail shall also suffice.
14.3 The contract between the parties and these GTC shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the German conflict of laws provisions and the UN Convention on Contracts for the International Sale of Goods.
14.4 The exclusive place of jurisdiction for all disputes arising from or in connection with the contract or these GTC, including their validity, is the registered office of Sensit in Potsdam.