For simplicity and assistance, the texts have been approximately translated into other languages with help of machine translation. Only the German terms, texts and Imprint are valid. Errors and omissions excepted.
The basic starting point for all deliveries and services of GartenMedien GmbH & Co. KG (GM) are always the GTC's "GENERAL" below.
The use of our sales support products, such as catalogues, brochures, variety labels, etc., is permitted exclusively for informal support of the sale of regular original goods (see Appendix G Agency work/publishing activity, compliance with third-party property rights).
On the top menu selection bar you will find all further attachments for the different service segments.
General Terms and Conditions of GartenMedien GmbH & Co. KG
The following conditions apply to every order placed by GartenMedien GmbH & Co. KG (GM). This also applies if GM does expressly object to other terms and conditions of the buyer. Subsidiary agreements, amendments and arrangements require our writen confirmation to be effective. In the case of deliveries to non-merchants, this written confirmation may also be omitted. The customer is at liberty to provide evidence of a specific order basis in the individual case. Commercial clients agree to be mentioned by the GM in the current reference media (catalogue, internet, ...) in general short form including logo.
2 Deliveries and services
Deliveries and services shall be made at our current prices valid on the day of delivery.
In the case of written offers, the binding perios stated in the offer shall apply from the date of the offer, otherwise the offers are subject to change. We reserve the right to sell out. Incoming orders shall only be deemed to have been accepted and acknowledged after written order confirmation (AB) has been issued in the scope of performance and delivery.
The content of the offers shall be treated confidentially even after the offer stage. All rights to the offers remain with us.
Cost estimates are estimated and prepared with the conditions applicable at the time of the request.
For standard products with list prices, the calculation is based on the prices valid at the time of delivery plus VAT. Older price lists lose their validity with the publication of a new one.
For customised solutions, invoicing is based on our AB. VAT is not charged only in cases where the conditions for tax exemption are proven to exist and this is expressly desired.
Additional services that can be reported or that have been rendered shall be invoiced in accordance with the current billing rates plus VAT. A logically structured written reoprt is sufficient here.
In the case of products specially printed for the customer, excess or short delivery quantities of up to 10% may occur for production-related reasons. Unless otherwise agreed, the actual delivery quantity shall be invoiced.
3 Delivery and dates
In joint projects with the customer, GM receives the necessary cooperation and support from the customer in terms of personnel and materials free of charge and on schedule. In the event of non-performance, the delivery times shall be extended appropriately, but at least by the period of the delay. Requirements of the customer for programming, delivery or organisation that are not covered by the specifications or the contract are also treated in this way.
For partial deliveries or delimitable partial services, corresponding settlements analogous to the percentage of completion are always permissible.
If the customer causes a non-temporary delay in delivery, commissioning, acceptance or other agreed services, the delivery/commissioning and acceptance dates stated in the order confirmation (AB) shall apply with regard to the due date for payment. The GM is free to calculate the additional costs incurred.The calculation of the agreed residual sum shall be made in adjustment to the general rate of inflation and the costs caused by storage and delay in the meantime.
In the event of culpable non-compliance with delivery deadlines by the Contractor (Contractor), the Client (Client) may, after the expiry of a reasonable grace period (usually 4 weeks), demand compensation for delay of 0.5% per completed week, up to a maximum total of 5% of the remuneration for that part of the performance which cannot be used due to non-completion. The Client's right to withdraw from the contract after the expiry of a further grace period in the event of unforeseeable completion shall remain unaffected. Further claims are excluded - except in the case of intent and gross negligence.
All documents produced in the context of the tendering phase are the property of GM. This also applies to the rights of exploitation. The documents may only be made accessible to third parties with prior written consent. In the case of custom developments, the development and marketing of similar products by GM is not prohibited. Drawings, programmes and other documents belonging to the offer and order processing must be returned to us immediately upon request. Documents of the purchaser may be handed over to third parties for the preparation of the offer without further agreement.
4 Shipping, -handling
Delivery is ex works, without installation, assembly or commissioning, plus packaging/shipping costs, to kerbside. Unless otherwise agreed, the goods shall be transported for the account and at the risk of the purchaser. Transport insurance can be taken out at the customer's expense. The choice of the shipping service provider (VD) is incumbent on GM. By placing an order with GM, the customer agrees that the customer's email address will be forwarded to VD for shipment processing.
5 Terms of payment
In the absence of any other terms of payment stipulated by us, remuneration shall be invoiced in each case:
For customer-specific orders:
- 30% after our order confirmation
- 30% after completion of 2/3 of the agreed scope of delivery
- 30% after declaration of readiness for delivery
- Final invoice after delivery and acceptance
payable strictly net 14 days after invoicing.
We deliver standard products cash on delivery plus shipping costs.
In the case of software deliveries, in the absence of any other agreement, the degree of completion is assumed to be linear to the delivery time for the sake of simplicity.
In the event of increased upfront payments, the client agrees to a reasonable increase in the initial payment up to a maximum of 50%. The reduction in time of guarantee and warranty claims due to the use of equipment and materials provided by the CL, e.g. in the development phase, shall not be compensated by the GM without express agreement.
Payments shall be made without deduction free GM's paying agent 14 days after the invoice date.Payment shall only be deemed to have been made upon receipt of the invoice amount on the GM business account. Incidental costs of all kinds shall be borne by the customer. In the event of default in payment, interest on arrears shall be charged at a rate of 5% above the respective base interest rate of the Deutsche Bundesbank until the amount is credited to the account. The Contractor shall be at liberty to prove that the damage was less.
Notices of defects by the customer shall not affect the due dates of the purchase price claim. The customer (if he is a contractor) may only assert rights of retention with regard to undisputed or legally established claims from the same contractual relationship.
6 Right of use and security interest
In the case of entrepreneurs, we retain title to all goods delivered to them until all our claims against the Client have been satisfied in full. In the event of overcollateralisation of more than 20 %, we shall release the collateral to the extent that. The customer is not entitled to pledge or assign by way of security to third parties items to which we have retained title. In the event of attempts by third parties to seize the goods, the customer shall draw attention to GM's ownership and notify GM immediately by registered letter. The customer shall bear all costs for the cancellation of the access of third parties to the security goods and for the replacement of the goods subject to retention of title, in particular also the costs of a third-party action.
A right of return also exists in the event of non-careful treatment of the goods and services. For entrepreneurs, this does not mean withdrawal from the contract.
In the event of default, cessation of payments or significant deterioration of assets, we shall be entitled to demand the surrender of our reserved property at any time. However, this does not mean withdrawal from the contract in the case of entrepreneurs.
Upon full payment in accordance with the contract, the customer acquires the non-exclusive and non-transferable right to use purchased software only on the computer system agreed between the parties in the purchase contract within the Federal Republic of Germany. Use outside this area requires a separate provision in the purchase contract.
Software may only be copied for use on the agreed computer system with the inclusion of GM's copyright or proprietary rights notice.
Standard software supplied by us is to be used in accordance with the licensing provisions of the respective manufacturer.
Unless otherwise agreed, no source programmes shall be provided. Insofar as this is unavoidable, as in the case of the use of spreadsheets or similar, confidential use by the Client is assured.
The customer may not make the software available to third parties or exploit it in whole or in part or in modified form. Third parties are not deemed to be agents of the customer who exercise his right of use to the intended extent exclusively for him and do not make the software accessible to any other person.
GM has the right to develop and make available for use by third parties, on their terms and conditions, software that is similar to custom software developed for the Customer.
All other rights to the software remain with GM. GM may - if not expressly excluded - use so-called "open source" software within the scope of solutions. The customer agrees to the obligations typical there, e.g. licence-free transfer of the modifications/entire solution, for himself and for us as supplier. In this respect, we are released from any warranty and secrecy.
An examination of software solutions/solution paths for patent freedom is not included. A warranty in the case that patents on our services/solutions are/become effective is expressly excluded.
If the commissioning of software is the subject matter of the contract, GM will bring about the operability of the software at the place of use after the Customer has created the prerequisites for this on the part of the Customer and has notified GM thereof in writing.
After completion of the commissioning, GM shall declare to the Customer the start of the acceptance period or the readiness for acceptance.
Subsequently, the contracting parties will carry out the acceptance test. With a successful acceptance test, acceptance has taken place. The customer shall immediately confirm the acceptance in writing. If an acceptance test is not successfully passed due to a defect which cannot be avoided even temporarily, only this one test shall be repeated after renewed readiness for acceptance (related to the defective part).
Minor defects in the software do not prevent acceptance as such. They shall be included in the acceptance protocol by mutual agreement of the parties. The use of the software by the customer usually begins only after acceptance.
If the acceptance test is not carried out or if the acceptance period ends for reasons for which GM is not responsible, the performance shall be deemed to have been accepted 30 days after the declaration of readiness for acceptance or the expiry of the acceptance period, whichever is earlier. The fiction of acceptance shall only apply if we have pointed out this legal consequence at the beginning of the period. The same applies if the customer takes the delivery item into use.
GM only warrants expressly warranted characteristics and the basic usability in the event of contractual and proper use in the environment and to the extent intended by the Customer at the time of conclusion of the contract.
Software does not have to be absolutely error-free, but only fundamentally usable and applicable for the intended purpose. This can also be ensured by reasonably following certain rules or refraining from certain operations and applying other substitute operations. Operation by qualified and trained staff is generally assumed.
The warranty period is 6 months from delivery or, in the case of contracts for work and services, from acceptance. For all deliveries and services under warranty, GM warrants for a further 6 months after warranty work has been carried out to the same extent as for the original deliveries and services.
We provide warranty in the form of rectification of defects or replacement delivery. In the event of failure of the rectification or replacement delivery, a reduction of the remuneration or cancellation of the contract may be demanded. The warranty shall take the form, at our discretion, of replacement or repair of the product complained of during normal working hours with, at our option, rectification of reproducible faults free of charge or naming of measures to circumvent or temporarily bridge the faults.
Prerequisite for the warranty is that
- the customer provides GM with all documents and information necessary for the assessment of the defect
- that the customer immediately notifies GM in writing of the defects found
- the error occurred in the latest version of the software purchased from the GM
- the customer grants GM reasonable time and opportunity for warranty and that no improper changes have been made to the scope or software delivered.
If GM allows a reasonable period of grace granted to it to elapse without fulfilling its warranty obligation, the customer may demand a reduction in price or rescission of the contract. Further warranty claims - in particular claims for damages - are excluded unless liability is mandatory due to warranted characteristics.
If GM is able to prove that no warranty case exists in the case of reported defects which are accepted subject to inspection, the expenses for troubleshooting as well as for the further services rendered by GM shall be borne by the Customer.
GM shall be liable to the Customer, unless warranted characteristics are involved, exclusively for damage to property and personal injury caused intentionally or by gross negligence by GM, its legal representatives and executive employees, unless contractual cardinal obligations are involved. This regulation concerns contractual as well as non-contractual claims. Claims under the Product Liability Act shall remain unaffected. In the event of a breach of cardinal obligations, GM shall only be liable to the extent of the foreseeable damage typical for the contract.
GM is not liable for indirect damage, such as consequential damage or loss of profit, nor for the loss of data or programs, unless the damage was caused intentionally or by gross negligence as defined in the aforementioned lines. In business dealings, liability for indirect damage shall also not apply in the event of intentional or grossly negligent causation.
Consistent data backup by the customer is indispensable; a violation is considered as grossly negligent contributory causation of a possible damage.
In business dealings, claims for damages become time-barred six months after the end of the warranty. This also applies to breaches of secondary obligations. Claims under the Product Liability Act are excluded from this. Claims in this regard require documented acceptance and continuous maintenance at the prescribed, necessary or legally required intervals. Appropriate functional safety precautions of a technical and organisational nature to prevent or limit damage, such as fire alarms, water alarms, etc. or security guards are also required.
11 Change of benefits
GM reserves the right to continuously improve and redesign the Software within the scope of its intended use until the expiry of the warranty. Updates or new functionalities are created after acceptance of the previous scope on the basis of a new offer. As a matter of principle, after conclusion of the contract there shall be no entitlement to functionalities or software versions which were not explicitly agreed at the time of the order agreement or which were not included in the scope of the standard software components used at that time.
12 Place of performance and jurisdiction
The place of performance for all services between the customer and the GM is Neustetten.
In domestic legal transactions with entrepreneurs, legal entities under public law and special funds under public law, it is agreed between the parties that the local court of Tübingen shall have jurisdiction for all disputes arising from the contract, irrespective of the amount in dispute. The same shall apply in cross-border legal transactions with EC member states and the rest of the world, insofar as the deliveries and services are made for professional or commercial purposes. However, GM is free to bring a dispute that belongs before the Regional Court in accordance with general rules on subject-matter jurisdiction before the Regional Court in Stuttgart.
The law of the Federal Republic of Germany shall apply exclusively.
The General Terms and Conditions of Business and Delivery as well as the enclosed specific annexes shall apply in their most recent version.