of NIMMSTA GmbH (hereinafter referred to as NIMMSTA)
1. Validity of the Terms and Conditions
(1) The sale and delivery of the products (“Delivery Item” or “Delivery Items”) and services of NIMMSTA GmbH, Steinkirchener Str. 11, 85617 Aßling, Germany (“NIMMSTA”) shall be made exclusively on the basis of these General Terms and Conditions of Business (“Terms and Conditions of Delivery”), which the customer of NIMMSTA (“Customer”) acknowledges by accepting the offer or taking delivery. They shall also apply to all future transactions with the Customer until the parties have agreed on more current Terms of Delivery. The validity of conflicting or supplementary terms and conditions of the Customer shall be excluded, even if NIMMSTA does not expressly object to them.
(2) The delivery items sold by NIMMSTA are exclusively addressed to entrepreneurs within the meaning of § 14 BGB (German Civil Code). By accepting these Terms and Conditions of Delivery, the customer declares that it is acting in the exercise of its commercial activity.
2. Offers
(1) All offers made by NIMMSTA are subject to change and non-binding. A contract shall only be concluded upon a written declaration of acceptance by NIMMSTA or upon – even partial – execution of an order by the customer. Sales representatives and sales agents are not authorized to accept binding orders from the customer.
3. Quality of the goods
(1) The goods shall be delivered in customary quality and design, taking into account customary manufacturing tolerances for dimensions, weights and quality conditions. NIMMSTA reserves the right to make technical and optical changes to the goods which serve to improve the goods and do not impair their functionality.
(2) Properties of the goods which are stated in publications of NIMMSTA or its sales representatives, in particular in advertising, drawings, brochures or other documents or on the packaging and labeling of the goods, or which are the subject of trade usage, shall only be deemed to be included in the contractual quality of the goods if they are expressly included in an offer or an order confirmation.
(3) Warranties, in particular warranties as to quality, shall be binding on NIMMSTA only to the extent that (I) they are contained in an offer or an order confirmation, (II) they are expressly designated as a “warranty” or “warranty as to quality” and (III) they expressly stipulate the obligations for NIMMSTA resulting from such warranty.
4. Prices and Terms of Payment
(1) Prices are quoted ex warehouse or ex works excluding packaging, freight and other ancillary costs as well as plus the value added tax (VAT) applicable on the day of delivery. The prices shall only apply upon acceptance of the confirmed quantity.
(2) All support services (in particular preparation for use, consulting, installation and demonstration, instruction or training) shall be remunerated on a time and material basis unless otherwise agreed. In this context, hourly rates, travel expenses and incidental expenses shall be based on NIMMSTA’s price list as amended from time to time, unless otherwise agreed. NIMMSTA may invoice on a monthly basis.
(3) If work is performed on a time and material basis, NIMMSTA may invoice on a monthly basis. The customer may dispute invoices for remuneration on a time and material basis only within one month of receipt. Support services (in particular installation, instruction, training and consulting) shall be remunerated separately if they are not expressly included in the fixed price.
(4) Costs for travel to the Client deemed necessary by NIMMSTA as well as additional costs for services which NIMMSTA provides outside normal working hours (Mon-Fri: 9:00 a.m. to 5:00 p.m.) as agreed shall be invoiced separately in accordance with NIMMSTA’s currently valid billing rates.
(5) In the absence of any other agreement with the customer, invoices shall be due immediately and payable without deduction within 30 calendar days of the invoice date at the latest. In the event of default in payment, NIMMSTA shall be entitled to charge interest and reminder fees from the due date of the invoice. The interest rate shall be 8 percentage points above the prime rate. Furthermore, the customer shall bear all costs incurred as a result of late payment, including those incurred as part of a collection procedure. Even if the customer stipulates otherwise, the payment shall first be offset against the oldest debt, in this case first against any costs, then against the interest and then against the principal debt.
(6) If the customer fails to meet its payment obligations in accordance with the contract or if other circumstances become known which call into question the customer’s creditworthiness and thus make NIMMSTA’s claims appear to be at risk, NIMMSTA shall be entitled to make further deliveries only against advance payment or to perform further services only against provision of security and/or to suspend such deliveries until all due claims have been settled in full.
(7) The customer shall be entitled to set off counterclaims and to exercise rights of retention on account of counterclaims only if these claims are acknowledged or have been finally determined by a court of law. The exercise of a right of retention shall also require that the counterclaims are based on the same legal relationship.
5. Delivery and Performance Time
(1) Delivery dates shall only be binding if they have been expressly designated in writing by NIMMSTA as fixed dates and all documents to be provided by the customer for the execution of the order are available. All delivery dates, including the fixed dates, are subject to correct and timely delivery to NIMMSTA. Compliance with the delivery dates shall be determined by the point in time at which the risk passes to the customer in accordance with clause 6.
(2) Delays in delivery and performance due to force majeure or other unforeseeable events for which NIMMSTA is not responsible and which make delivery substantially more difficult or impossible, such as, in particular, difficulties in procuring materials, strikes, lawful lockouts, operational disruptions, official orders, etc., even if they occur at the suppliers or sub-suppliers, shall entitle NIMMSTA to postpone the delivery or performance by the duration of the hindrance plus a reasonable start-up period. NIMMSTA shall not be responsible for the aforementioned circumstances even if they occur during an already existing delay. NIMMSTA shall inform the customer of the circumstances of the impediment and the expected duration of the delay.
(3) If an impediment pursuant to Clause 5.2 lasts three months or longer, NIMMSTA shall be entitled to withdraw from the contract with respect to the part not yet performed.
(4) With the exception of firmly agreed fixed dates, NIMMSTA shall only be in default if the customer has set a grace period of at least one month in writing after expiry of the non-binding delivery date and this grace period has expired unused.
(5) If NIMMSTA is in default, its liability for damages in the event of slight negligence shall be limited to an amount of 0.5% for each full week of default, but in total to a maximum of 50% of the invoice value of the delivery affected by the default. Any further claims shall only exist in the event of intent or gross negligence in accordance with Section 10. If the impediment lasts longer than three months, the customer shall be entitled, after a reasonable period of grace, to withdraw from the contract with regard to the part not yet fulfilled.
(6) Partial deliveries and partial performance shall be permissible insofar as they are reasonable for the Customer.
(7) Deviations from the order quantities of up to plus/minus 10% shall be permissible, in which case the quantity actually delivered shall be invoiced in each case.
6. Transfer of Risk and Acceptance of the Goods
(1) Any delivery, including carriage paid deliveries, shall be made at the risk of the customer. The risk shall pass as soon as the consignment has been handed over to the person performing the transport or, in the case of transport by NIMMSTA’s employees, has left the warehouse for the purpose of shipment. This shall also apply if the goods are delivered directly to the customer by a third party manufacturer on behalf of NIMMSTA. If shipment of the goods is delayed or made impossible by circumstances for which NIMMSTA is not responsible, the risk shall pass to the customer upon notification that the goods are ready for shipment.
(2) Insurance against damage and loss in transit shall only be taken out at the customer’s request and for the customer’s account.
(3) Complaints regarding transport damage and shortages must be made in writing immediately upon receipt of the goods and documented on the accompanying documents. Any evidence in this respect shall be secured.
(4) As a matter of principle, no liability shall be assumed with regard to any accessories of the customer which are sent to NIMMSTA in connection with service orders or device repairs but are not listed on the respective delivery bill.
7. Liability for Defects
(1) The Customer’s warranty rights [claims for defects] shall require that the Customer inspects the goods in accordance with § 377 of the German Commercial Code (HGB) and properly gives notice of defects. Notifications of defects must be made in writing, stating the specific defect. NIMMSTA must be notified in writing of recognizable defects within one week of delivery, of hidden defects within one week of their discovery. The aforementioned deadlines are preclusive deadlines.
(2) If there is a defect, NIMMSTA may remedy it at its own discretion by repair or by replacement delivery. If the rectification or replacement delivery has finally failed, the customer shall be entitled, at its option, to rescind the contract [withdrawal] or to a reasonable reduction of the purchase price [reduction]. Rectification or replacement delivery shall be made without recognition of a legal obligation and shall not interrupt the limitation period for claims based on defects for the goods.
(3) The limitation period for claims for defects shall be 12 months from delivery.
(4) There shall be no claims for defects for insignificant deviations from the agreed quality which do not particularly impede the use of the goods, natural wear and tear, faulty or negligent handling, unsuitable or improper use, chemical, electrochemical or electronic influences, improper installation, operation, use or maintenance or non-reproducible software errors, unless the damage is attributable to a fault of NIMMSTA. Also excluded are claims for defects attributable to improper modifications, repairs, the opening of seals or sealed parts or the use of consumables (chemicals, operating materials) which do not comply with the original specifications provided by NIMMSTA by the customer or third parties commissioned by the customer. Furthermore, no claims for defects shall exist for goods for which the serial number is missing, has been changed or has been made unrecognizable, unless the customer proves that this was already the case at the time of delivery.
(5) If the customer wrongly asserts claims for defects, NIMMSTA shall be entitled to charge the customer for the reasonable expenses it has incurred in remedying or ascertaining the defects.
(6) Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, shall be excluded to the extent that the expenses increase due to subsequent transport of the goods to a place other than the agreed place of delivery. NIMMSTA shall be entitled to charge such additional costs to the customer.
(7) Further claims for defects of any kind whatsoever shall be excluded subject to any claims for damages limited in accordance with Clause 12.
(8) The Customer undertakes to ensure that the working environment of the Software meets the system requirements specified in the data sheet.
(9) The Customer undertakes to take reasonable precautions in the event that the program does not work properly in whole or in part
8. Property Rights
(1) NIMMSTA shall be obliged to deliver the Goods free of copyrights and other industrial property rights (hereinafter “Property Rights”) in respect of the country in which they are to be used in accordance with the contractual agreement (in case of doubt: in the country of the place of delivery). In the event of a breach of the above obligation, NIMMSTA shall be liable to the customer in accordance with the following provisions, provided that the goods have been used by the customer in accordance with this contract, NIMMSTA is responsible for the infringement of the Property Rights and the limitation period for claims for defects pursuant to Clause 7.3 has not yet expired.
a) NIMMSTA may, at its option, either obtain at its own expense a right of use sufficient for the agreed or presumed use with respect to the infringed property right, or modify the goods in such a way that the property right is no longer infringed, or replace the goods, provided that the agreed or presumed use by the customer is not impaired thereby. If this is not possible or unreasonable for NIMMSTA, the customer may withdraw from the contract with respect to the goods concerned.
b) NIMMSTA’s liability for damages shall be subject to the provisions of Clause 10.
c) The aforementioned obligations of NIMMSTA shall apply only to the extent that the customer (I) immediately notifies NIMMSTA in writing of the assertion of claims by third parties, (II) does not admit the existence of an infringement to third parties, and (III) leaves any defense measures and negotiations for the settlement of disputes to NIMMSTA’s discretion. If Customer discontinues use of the Goods to mitigate damages or for any other legitimate reason, Customer shall make clear to the third party that no acknowledgment of the alleged infringement follows from the discontinuance of use.
(2) Any claims of the Customer shall be excluded if the infringement of an Intellectual Property Right was caused by a type of use not intended by NIMMSTA, or a modification of the Goods by the Customer or third parties commissioned by the Customer, or their use together with products not provided or recommended for joint use by NIMMSTA.
(3) Any claims of the customer against NIMMSTA or its vicarious agents which go beyond the rights set forth in this Clause 8 and are based on an infringement of property rights shall be excluded.
9. Rights of Use Software
(1) The customer may use software from NIMMSTA to the agreed extent in its own business. NIMMSTA shall grant the customer the authorizations necessary for the use of the software as a simple right of use, including the right to correct errors. The duration of the right of use shall be governed by 10. Duration of Rights of Use.
(2) The customer shall technically set up the Software in accordance with the agreed licenses and practically comply with the specifications. This shall apply in particular with regard to the limitation to the number of workstations or SMART WEARABLES agreed between NIMMSTA and the Customer.
(3) The customer may, in particular, make copies of NIMMSTA’s software on its computers to the extent that this is necessary for proper use of the computer program, including error correction.
(4) The customer is also authorized to make the backup copies of NIMMSTA’s software required to secure future use.
(5) The user manual and other documents provided by NIMMSTA may only be reproduced for internal company purposes.
(6) All other acts of exploitation which are not permitted by law, in particular the reproduction, rental, lending, reworking, public reproduction, distribution in tangible or intangible form and further licensing to third parties beyond the scope of subsections 1-5, shall require the prior consent of NIMMSTA.
10. Duration of the Rights of Use Software
(1) The right of use is granted to the customer for an unlimited period of time.
(2) If the contract ends, for example due to a validly declared rescission, the rights of use granted to the customer by NIMMSTA shall automatically revert to NIMMSTA.
(3) In this case, the customer shall not be entitled to continue using the software.
11. Licenses
(1) A single license (Feature UNLOCK) grants an unlimited right of use with the use with a NIMMSTA SMART WEARABLE.
12. Liability
(1) NIMMSTA shall be liable for any damage, irrespective of the legal reason, only if (I) such damage is due to culpable (i.e. at least negligent) material breaches of duty by NIMMSTA which jeopardize the achievement of the purpose of the contract, or to the culpable breach of duties the performance of which is a prerequisite for the proper performance of the contract, or (II) the damage was caused by gross negligence or intent on the part of NIMMSTA, or (III) NIMMSTA has assumed a guarantee.
(2) NIMMSTA’s liability shall be limited to the typical, foreseeable damage if NIMMSTA (I) has culpably, but not grossly negligently or intentionally, committed material breaches of duty which jeopardize the achievement of the purpose of the contract, or has breached duties the performance of which is a prerequisite for the proper performance of the contract, or (II) employees or agents of NIMMSTA who are not corporate bodies or executive employees have violated other duties with gross negligence, or (III) if NIMMSTA has assumed a guarantee, unless the guarantee is expressly a guarantee for the quality of a good.
(3) In the cases of Clause 10.2, NIMMSTA shall not be liable for indirect damage, consequential damage or loss of profit.
(4) Claims for damages by the Customer shall become statute-barred in the cases of Clause 10.2 at the latest after two years from the time at which the Customer becomes aware of the damage or, irrespective of such knowledge, at the latest after three years from the time of the damaging event. Claims based on defects of the goods shall remain subject to the limitation period pursuant to Clause 7.3.
(5) NIMMSTA shall be liable without limitation under the German Product Liability Act, for damages resulting from injury to life, body and health, for fraudulent concealment of a defect and the assumption of a guarantee for the quality of an item.
(6) Clauses 10.1 to 10.5 shall also apply in the event of any claims for damages by the customer against employees or agents of NIMMSTA.
13. Retention of Title
(1) Until all claims arising from the entire current business relationship with the customer have been satisfied in full, the delivered goods shall remain the property of NIMMSTA (“Retained Goods”).
(2) The customer shall be entitled to resell the Retained Goods in the ordinary course of business subject to retention of title as long as the customer is not in default of payment to NIMMSTA. Pledging or transfer by way of security of the goods subject to retention of title shall not be permitted.
(3) In order to secure NIMMSTA’s claims, the customer already now assigns its future claims from the resale of the Retained Goods pursuant to Clause 11.2 in the amount of the invoice value (including value added tax) of the Retained Goods until full payment of all claims of NIMMSTA pursuant to Clause 11.1; NIMMSTA accepts this assignment. If the goods subject to retention of title have been further processed with other items not belonging to the customer, the assignment shall be made only in proportion to the co-ownership shares in the further processed goods pursuant to Clause 11.6. The customer shall remain authorized to collect the claim even after the assignment as long as the customer meets its payment obligations from the proceeds collected, is not in default of payment and, in particular, has not filed for insolvency proceedings and has not suspended its payments. NIMMSTA’s authority to collect the claim itself shall remain unaffected thereby. At NIMMSTA’s request, the customer shall inform NIMMSTA of the names and addresses of the relevant purchasers as well as the nature and extent of its claims against them. NIMMSTA may disclose the assignment at any time to secure its payment claims.
(4) In the event of seizure or other access by third parties to the goods subject to retention of title, the customer shall point out NIMMSTA’s ownership and notify NIMMSTA in writing without delay. The customer shall bear all costs of an intervention procedure and other defensive measures in connection with such access by third parties.
(5) If the customer acts in breach of contract, in particular in the event of payment arrears, insolvency or deterioration of assets, NIMMSTA may take possession of the goods subject to retention of title at the customer’s expense, even without withdrawing from the contract, and may enter the customer’s business premises for this purpose. The customer’s claims for return of the goods to its customers are already assigned to NIMMSTA. NIMMSTA’s taking back or seizure of the goods subject to retention of title shall not constitute a rescission of the contract. Withdrawal from the contract may only be effected by means of an express declaration and does not require the setting of a deadline in the event of the customer’s conduct in breach of the contract. NIMMSTA shall be entitled to realize the goods subject to retention of title and to satisfy its claims from the proceeds thereof, offsetting the outstanding claims against the customer.
(6) The processing or transformation of the goods subject to retention of title by the customer shall always be carried out for NIMMSTA. If the goods subject to retention of title are processed or transformed together with other items not belonging to NIMMSTA, NIMMSTA shall acquire co-ownership of the new item in proportion to the value of the goods subject to retention of title to the other processed or transformed items at the time of processing or transformation; the same shall apply to the new item thus created as to the goods delivered under retention of title. If the goods subject to retention of title are inseparably mixed or combined with other items not belonging to NIMMSTA, NIMMSTA shall acquire co-ownership of the new item in proportion to the value of the goods subject to retention of title to the other mixed items at the time of mixing or combination. If the mixing or combination takes place in such a way that the customer’s item is to be regarded as the main item, the customer shall transfer co-ownership to NIMMSTA on a pro rata basis. The customer shall hold the sole ownership or co-ownership thus created in safe custody for NIMMSTA free of charge. To secure NIMMSTA’s claims against the customer, the customer shall also assign to NIMMSTA the claims accruing against a third party as a result of the combination of the goods subject to retention of title with real property.
14. Confidentiality
(1) NIMMSTA undertakes to use all knowledge of trade secrets obtained within the framework of the contractual relationship and of information designated in writing as confidential only for the performance of the contract and to treat such knowledge as confidential for an unlimited period of time.
(2) The obligation of confidential treatment shall not apply to ideas, concepts, know-how and techniques relating to product creation or to data which are already known to NIMMSTA or were known or will become known to NIMMSTA outside of this contract.
(3) NIMMSTA shall oblige its employees to maintain confidentiality.
(4) NIMMSTA may include the Customer’s name and a brief description of the service provided in a reference list. All other advertising references to the customer shall be agreed with the customer in advance.
(5) The Customer hereby expressly consents – waiving notification – to personal data being processed within the scope of the permissibility of the Federal Data Protection Act, insofar as this is necessary for the performance of the contractual relationship.
15. Disposal obligations according to the Electrical and Electronic Equipment Act (ElektroG)
(1) If the goods are electrical or electronic equipment within the meaning of the Electrical and Electronic Equipment Act (ElektroG), the customer shall assume the proper disposal of the goods at its own expense after termination of use.
(2) The customer shall indemnify NIMMSTA against any obligations under § 10 para. 2 ElektroG and any related claims of third parties.
(3) The customer shall contractually obligate commercial third parties to whom it passes on the delivered goods in writing to properly dispose of the goods after termination of use at their expense in accordance with the statutory provisions and to impose a corresponding further obligation in the event of renewed passing on. If the customer fails to contractually obligate third parties to whom he passes on the goods to assume the obligation to dispose of the goods and to impose a further obligation and to document this in writing, the customer shall be obligated to take back the goods at his expense after termination of use and to properly dispose of them in accordance with the statutory provisions.
(4) NIMMSTA’s claim for takeover and indemnification by the customer shall not become time-barred before the expiry of two years after the final termination of use of the goods [expiry suspension]. The two-year period of suspension of expiry shall commence at the earliest upon receipt of a written notification by the customer of the termination of use.
16. Supplementary Services for Software Deliveries
(1) Software shall be delivered in a form ready for installation. Additional services, in particular installation, configuration or maintenance, shall be performed on the basis of separate agreements in accordance with NIMMSTA’s fee rates applicable at that time. The Customer shall then provide, free of charge, the necessary machine time, the operating personnel for the system as well as suitable rooms and all necessary technical equipment for the duration of the service.
(2) Any training or introductory course for the customer’s employees is not part of the scope of delivery and must be agreed separately with NIMMSTA.
17. Supplementary services for hardware deliveries
(1) Hardware shall be delivered in a form ready for installation. Additional services, in particular installation and maintenance, shall be provided on the basis of separate agreements in accordance with NIMMSTA’s fee rates applicable at that time. The Customer shall then provide, free of charge, the necessary machine time, the operating personnel for the system as well as suitable rooms and all necessary technical equipment for the duration of the service.
(2) The provision of project planning and other consulting services must be ordered separately.
18. Export
(1) The export of goods from NIMMSTA to non-EU countries requires the written consent of NIMMSTA, irrespective of the fact that the customer is responsible for obtaining all official import and export permits.
19. Miscellaneous
(1) The place of performance is the registered office of NIMMSTA in Aßling.
(2) The exclusive place of jurisdiction for all disputes arising from and in connection with the contractual relationship shall be Munich. However, NIMMSTA shall also be entitled to bring an action before the court having jurisdiction for the customer’s registered office.
(3) The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on the International Sale of Goods (CISG).
(4) Insofar as correspondence is conducted in a foreign language or assembly instructions, documentation or notes are written in a foreign language, the German version shall prevail in the event of contradictions between the German and English versions.
(5) Should one or more provisions of these Terms and Conditions or a provision within the scope of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements. Ineffective or missing clauses shall be replaced by effective clauses that come as close as possible to the intended purpose.