(Last updated: 07/2014)
1.1. The terms of business (GTB) quoted below are valid for all supplies, services and offers from ANOVA.
1.2. Any contradictory terms of business of the customer will not be an integral part of contract, neither in the case of supplies, and ANOVA is not obliged to make an express objection.
1.3. Any deviations from these GTB are only effective if they have been confirmed by us in writing.
1.4. ANOVA is entitled to change these GTB by informing the customer of such change(s) in writing. Changes come into effect one month after notification. Should the changes be to the disadvantage of the customer it can terminate this contract within one month from receipt of the notification of change. If it does not give notice of termination then the change will be effective vis-à-vis the customer upon expiry of the period of one month.
2.1. Offers are not binding - in particular in respect of the prices, quantity, delivery deadline, supply possibilities and ancillary services. A contract is not deemed to be concluded until there is a written confirmation of order and by virtue of the despatch of the goods and/or the implementation of the order by ANOVA.
2.2. The express assumption of guarantee or the agreement upon characteristics requires written confirmation by ANOVA.
2.3. ANOVA reserves the right to make deviations in the offer and/or of the confirmation of order which are enforced upon it by compliance with legal or technical norms.
2.4. Insofar as the partners communicate via electronic post (e-mail) they recognise the unlimited effectiveness of declarations of intent made in this manner and according to the following conditions:
2.4.1. In the email itself, the usual details for an email must not be suppressed or avoided by means of anonymisation, i. e. the email must contain the name of the sender, the point in time of despatch (date and hour) as well as repetition of the name of the sender at the end of the message. An email received under these conditions is deemed to be sourced from the other partner unless evidence to the contrary is produced.
2.4.2. No confidentiality is guaranteed for data conveyed on the internet in unencrypted form.
2.5. Prices are understood to be net, exclusive of packaging and freight costs and plus currently valid statutory VAT.
2.6. Special, and additionally agreed upon work tasks which go beyond the scope of what is contractually agreed upon and included in the price, such as, for instance, installation, training or consultancy services, will be separately invoiced for.
2.7. Any possibly arising claims for reimbursement on the part of the customer, e. g. on account of over-payment etc, will be credited to the customer's invoice account and, as far as feasible, credited against the next account receivable due.
3.1. ANOVA is entitled to use the assistance of third parties for the fulfilment of the services owed by it.
3.2. ANOVA is entitled, to a reasonable extent, to make partial deliveries both of goods and services.
3.3. Products supplied for test or demonstration purposes (hardware, software, data carriers, documents etc.) remain the property of ANOVA. ANOVA reserves the right to configure software in such a way that the programs are no longer completely implementable after the expiry of agreed upon test periods. The customer can derive no claims of any kind from this.
3.4. Delivery deadlines quoted by ANOVA are not binding. Should it be the case that the ANOVA exceeds the delivery deadline by more than 4 weeks then the customer is entitled to set a period of grace for the supplies.
3.5. Changes in the order lead to the suspension of deadlines and delivery periods agreed upon insofar as nothing else has been agreed upon.
3.6. Delivery and service periods will be appropriately extended in cases of force majeure and of all other obstacles which may be of substantial influence on supplies and services and which are beyond the control of ANOVA.
4.1. The guarantee period is one year as from the legal commencement of the guarantee.
4.2. If the customer is an entrepreneur then all supplies will be at the expense and risk of the customer. Transportation insurances will only be taken over by us upon the express wish of the customer and at its expense.
4.3. Products installed by ANOVA as per order are to be tested by the customer without delay. If the products function, to a substantial degree, as per the order then the customer will immediately declare acceptance in writing. If the customer refuses acceptance then it must notify ANOVA without delay, and at the latest within 10 working days after installation, quoting concrete defects with a concrete description in a defect protocol. If neither a declaration of acceptance nor notification of defects is received by ANOVA in the period named then the work is deemed to have been accepted.
The customer may not refuse acceptance on account of insubstantial defects.
4.4. Insofar as no other special regulations have been agreed upon ANOVA is liable for defects in its software and/or service or work tasks according to legally prevalent stipulations.
4.5. In the case of guilty infringement of contractual obligations the customer must in any case first of all request ANOVA in writing to make reparations and/or a replacement delivery.
5.1. In the case of delay in payment by the customer ANOVA is entitled to demand interest on arrears at the rate of 8% above the basic interest rate insofar as the customer has not demonstrated a lower level of damage or ANOVA a higher level.
5.2. Unless otherwise agreed upon, deliveries of goods are to be paid for net within 10 days of receipt of invoice and without any deductions.
5.3. The customer may only balance against undisputed or legally effective accounts receivable and/or credit these against accounts receivable by ANOVA. The customer may only exercise rights of retention if it has been ascertained that its counterclaim is undisputed or is legally valid.
5.4. If the customer simultaneously owes ANOVA several payments - and insofar as the customer has not made any repayment arrangement - first of all the debt due is repaid, or the oldest one of the several debts due for repayment.
6.1. The customer is itself responsible for the correct installation of the software supplied. Neither installation by ANOVA nor the training of the customer or of its staff is included in the scope of delivery of the software supplied. These services only take place upon appropriate agreement and will be invoiced for separately.
6.2. Insofar as ANOVA is to provide installation, training or consultancy services then the customer must commit to providing the required on-site prerequisites, in particular the rooms, infrastructure, documents and staff required. If the customer does not fulfil its collaboration obligations as per clause 1 then the implementation periods of ANOVA as contractually agreed upon will be correspondingly extended. ANOVA can invoice for the additional expenditure incurred and, in particular, for the extended provision of its own members of staff or for the use of its own materials.
6.3. It is permissible that companies cooperating with us shall be assigned to take over installation tasks on our behalf. In such a case the customer will be informed of this.
7.1. ANOVA reserves the right of ownership of the program carriers supplied as well as the copyright on the software installed on them up until complete payment of the purchase price. If the customer is a businessman then the above-mentioned reservations are valid up until the complete payment of all accounts receivable incurred and being incurred within the business relationship. This is even then valid if individual or entire accounts receivable by ANOVA are included in a current invoice and the total due is calculated and acknowledged. Upon complete acquisition of the ownership of the program carriers the customer acquires the usage rights specified in the product licences. The same holds good for online supplies in which the customer is obligated, immediately after supply, to implement a backup of the software on corresponding data carriers.
7.2. The customer must treat the goods subject to retention of title with the due diligence of a good businessman on behalf of ANOVA and insure them, at its own cost, against fire, water, theft and other risks. Immediately, upon conclusion of this agreement, the customer assigns to ANOVA its rights as arising from the insurance contracts. ANOVA accepts the assignment.
7.3. The customer also immediately assigns to ANOVA all accounts receivable arising from the onward sale of the goods and/or the further licensing of the software. It is revocably entitled to collect these accounts receivable. Upon request from ANOVA it must notify the accounts receivable assigned and the debtor parties. ANOVA is entitled to declare the assignment to the debtor party of the customer.
7.4. In the case of behaviour contrary to contract by the customer - in particular arrears of payment - or the cessation of payments expected, ANOVA is entitled to take back the goods subject to retention of title at the expense of the customer or to demand the assignment of any claims of surrender of the customer vis-à-vis third parties. These rights also still exist if the guaranteed accounts receivable are beyond the statue of limitations. ANOVA is entitled to exploit the goods subject to retention of title and to satisfy these by offsetting against open accounts receivable from income from sales.
7.5. In the case of a right of return to ANOVA as per the above-mentioned paragraph ANOVA is entitled to collect the goods subject to retention of title and still on the premises of the customer at the customer's expense. The customer must allow the staff members of ANOVA access to its premises during normal business hours, even without prior notification, for the purpose of the collection of the goods subject to retention of title.
7.6. The exercise of the rights from retention of ownership title or the demand for surrender of goods is not deemed to constitute withdrawal from contract.
7.7. The customer is not entitled to assign, wholly or in part, rights and obligations arising from contracts concluded with ANOVA or to assign wholly or in part to third parties any rights and obligations arising from contracts concluded with ANOVA without the consent of ANOVA.
8.1. ANOVA retains the copyrights and commercial protection rights as well as the exploitation rights to the software supplied. The remarks on copyright protection on the program carrier or on the packaging - also of third parties - are to be complied with. Insofar as nothing else has been agreed upon, the customer acquires a simple right of usage to the software. Furthermore the customer's right of usage is regulated according to the Terms of Licence for ANOVA software for the products in question.
8.2. The customer commits itself to immediately notify ANOVA of reverberations of the ANOVA software supplied on the property rights of third parties and to assign to ANOVA, at its own cost, any legal protection. ANOVA is entitled to carry out, on account of protection right claims by third parties, at its own cost, alterations to software - even on goods already supplied and paid for.
8.3. For supplies where the software products of other manufacturers are used to complement the goods their terms of licence will be correspondingly applicable.
8.4. In the case of breaches of these agreements the customer is liable in the full amount for the resultant damages.
9.1. ANOVA is only liable without restriction for malice aforethought and gross negligence on the part of ANOVA, its legal representatives or vicarious agents as well as for damages arising out of death, injury to body or health which are due to a breach of obligation which is the fault of ANOVA, its legal representatives or vicarious agents.
9.2. For any other guilty breach of substantial contractual obligations ANOVA is liable, regardless of the legal grounds, in accordance with such grounds. The legal right to withdrawal by the contractual partner remains unaffected, however ANOVA is in addition liable for no more than the amount of a typically foreseeable damage event and/or of typically foreseeable expenditure items.
9.3. Further liability is excluded.
9.4. Insofar as ANOVA is liable according to clause 9.2. the liability is limited to the cover sum of the industrial liability insurance of ANOVA.
9.5. ANOVA is not liable for damages insofar as the customer would have been able to prevent their occurrence via measures to be reasonably expected of it - in particular such as via program and data backup.
9.6. The regulations of this clause 9 are also valid for the benefit of the employees and other vicarious agents of ANOVA.
9.7. The stipulations of the law on product liability remained unaffected.
10.1. These terms remain binding in their remaining parts, even in cases of doubt, also when one or several of the terms is/are legally ineffective. Should terms be, or become, wholly or partially ineffective then a term(s) will replace it/them which most closely resemble(s) the commercial intent of the ineffective term(s).
10.2. The law of the Federal Republic of Germany is exclusively applicable with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
10.3. Place of fulfilment for all supplies and services of ANOVA is Rostock.
10.4 Insofar as the customer is a businessman in the sense of legal stipulations, or has its registered premises abroad, the exclusive Court of Jurisdiction is agreed as being Rostock. ANOVA is, however, also entitled to sue the customer at its general Court of Jurisdiction.