General conditions of sale
(Note: the English version is a translation of the German version. In cases of doubt, the German version shall prevail)
A - General terms
1. Scope of application
1.1. Our General Conditions of Sale (GCoS) shall apply to all current and future offers, products, services and deliveries. Our customers confirm acceptance of our GCoS with an order confirmation, latest by acceptance of a service or delivery.
1.2. Our GCoS apply exclusively; we do not recognize contradicting or deviating conditions of purchasers unless we have explicitly consented to their application in writing. Our GCoS also apply where we carry out deliveries without reservation in the knowledge of contradicting or deviating business conditions of the purchaser.
2. Object of agreement
2.1. These GCoS govern selling and/or delivery of computer systems, image processing systems, and audiovisual devices (with all additional components and extensions), software packages (systems software, programming language and user software) – hereafter termed “Products” – as well as training classes and any media production such as creation of films, photographs, computer animations, multi-media shows, artwork masters, presentation materials, data, creation of software, contract work – hereafter termed “Services”.
2.2. Customers are responsible for selection of products and services, their applicability for the purpose they are purchased for and for results strived for.
3. Bindingness of offers, offer documentation, order confirmation
3.1. Our offers are non-binding. Documentation provided with an offer is approximative if not explicitly referred to as binding. All cost estimates, story boards, graphical layouts, photographs and other documentation accompanying an offer remain the property of AEON. Such documentation shall not be disclosed to third parties. AEON retains the right to request return of any documentation accompanying provided to the customer in case an order is not confirmed.
3.2. Contracts as well as side agreements and additions to contracts will be confirmed by AEON in writing.
3.3. Considering AEON’s interests, improvements or changes to a service are permissible as far as they are reasonable and in the interest of the customer.
3.4. Meeting minutes provided by AEON are binding unless the customer disagrees, without delay, upon receiving such minutes.
3.5. Artwork, layouts, documents, program code and further working materials intended for provisioning of a service contractually agreed (especially prototypes, samples, illustrations, for example), prepared by AEON or on behalf of AEON, remain property of AEON. AEON is not obliged to provide such materials to the customer. AEON is also not obliged to archive such materials.
4. Subcontracting of services
4.1. AEON is entitled to subcontract certain activities needed to fulfill the committed services to third parties. AEON takes full responsibility for work done by subcontractors.
4.2. On behalf of the customer, AEON is entitled to subcontract orders for production of trades AEON is involved in to third parties. The customer herewith authorizes AEON to such subcontracting.
5. Delivery, duties and co-operation of the customer
5.1. Terms of delivery shall be agreed in writing.
5.2. Delivery times AEON mentions in offers and order confirmations are approximative and binding only when confirmed as binding in writing by AEON.
5.3. AEON agrees to binding delivery times provided the customer – if his/her co-operation or participation is required – cooperates in a timely manner by providing all necessary information, documentation, texts, specifications, approvals etc. in a timely manner and at the required quality or establishes prerequisites for installation of products. Otherwise, the customer shall grant AEON a reasonable grace period for providing the products or services thus owed. Grace periods shall be set out in writing.
5.4. Delivery obligations shall be deemed fulfilled at the time the products are handed to the company or person commissioned.
5.5. Deliveries are made ex stock (AEON, Hanau, or the warehouse of a subcontractor of AEON). Costs for delivery are to be covered by the customer. The risk for any accidental loss or accidental deterioration of products shall pass to the customer as soon as products leave AEONs premises in Hanau or the warehouse of AEON’s subcontractor and products are handed over to the carrier commissioned to deliver the product to the customer. Freight insurance is possible at the request and cost of the customer.
5.6. AEON excludes claims for indemnification in case of delayed or non-delivery, including a grace period agreed between the customer and AEON. This does not apply to deliberate intention or gross negligence.
5.7. AEON shall be entitled to make reasonable partial deliveries or render partial services. In case of long-term assignments, partial deliveries are considered as independent accomplishments.
5.8. The customer provides AEON with any required support to fulfill the contract and delivers any information or other prerequisite. If requested by AEON, the customer takes care for acceptable conditions of work at the project location and provides AEON with all documentation, procedures and conditions needed to fulfill the contract.
5.9. The customer shall reimburse AEON for additional work and expense caused by false, changed or corrected information given by the customer.
5.10. In case the customer does not – or not fully – meet his/her contractual obligations, including his/her obligation to co-operate (clarification of technical specifications, approval, provision of documentation or information), AEON may withdraw from the contract, without affecting other legal or contractual rights.
5.11. Neither the customer nor AEON shall be liable for delays or failure to fulfill contractual obligations in case of force majeure, industrial action or interruption of operations beyond the control of AEON. The performance period of AEON shall be extended by the duration of such events. If such events last longer than 8 weeks, either party may withdraw from the contract to the extent that services are not completed.
6. Prices and payment terms
6.1. The prices agreed upon at order confirmation shall prevail. Statutory value added tax as well as cost for freight, postal charges, packaging, insurance cost, installation and instruction of users shall be remunerated separately, if not agreed otherwise in the contract.
6.2. Payment shall be deemed effected on such date as AEON attains control over the amount owed.
6.3. Unless other agreements have been made, payments are due net within 10 days of invoice date.
6.4. In the event of default, AEON shall be entitled to charge late-payment interest in the statutory amount. Its right to assert claims for further damages, particularly as concerns higher interest rates, on other legal grounds shall remain intact. In case invoices on partial deliveries are not balanced, AEON shall not be obliged to continue services.
6.5. The customer shall not be entitled to set off payment against any claims other than claims that are uncontested or confirmed by declaratory judgment unless the customers claims are accepted by AEON in writing or established as final and absolute.
6.6. If, upon entering into a contract, the asset situation of the customer deteriorates substantially or if such deterioration becomes noticeable upon entering into a contract, thus putting at risk AEON's claims for payment, AEON shall be entitled to suspend the further execution of the contract until the customer provides consideration or offers security. AEON shall also be entitled to ask for return of any products already delivered. If the customer defaults on payments, all claims against him, regardless of whether they have been invoiced or not, will fall due immediately unless the default was not his fault.
7. Retention of title
7.1. AEON shall retain title to all goods until such time as payment has been made in full. If the goods and/or services supplied by AEON include software, a revocable license for such software will be granted until the time payment is made in full. Prior to the full passing of title, the item(s) shall not be pledged, transferred as security, processed or modified without the express consent of AEON. The customer shall notify AEON immediately if any third party asserts claims to the goods.
7.2. Liability for damages to products delivered shall remain with the customer until such time as payment has been made in full.
8. Guarantee for Products
8.1. AEON’s warranty applies to new products within the statutory limitation periods, i.e., 2 years for customers or 6 months for entrepreneurs. For second hand products, the limitation is 1 year for consumers. For entrepreneurs, warranty for second hand products is excluded. The warranty period starts with the handover of product.
8.2. AEON shall not be liable for damage for which AEON is not responsible, particularly damage that is caused by the improper use or handling of the products. The customer shall comply with the recommendations of AEON and/or the manufacturer regarding operation, storage and maintenance, shall make only authorized changes, shall change replacement parts in a proper and expert manner and shall use only consumables that comply with the relevant specifications. Normal wear and tear typical of consuming shall not constitute cause for a complaint. AEON shall not accept any liability for damages caused by or resulting from the customer's breach of the aforementioned obligations.
8.3. AEON’s warranty does not cover compatibility of hardware and software components unless the product delivered by AEON comprises hard- and software as an entity or unless compatibility of certain hardware and software components have been contractually agreed.
8.4. If a complaint is made, the cause of which lays prior to transfer of risk, the customer shall describe the symptoms of the defect in written and detailed to AEON within 14 days of receipt of products. In-time dispatch shall be sufficient.
8.5. Otherwise, enforcement of warranty is excluded. If the customer is an entrepreneur under s. 14 BGB (German Civil Code), the duty to examine and to report defects pursuant to s. 377 HGB (German Commercial Code) shall remain intact. For traders, claims for defects depend upon his having properly carried out his examination and complaint obligations in accordance with § 377 HGB (German Commercial Code).
The qualification under 8.1 to 8.4 shall not be applicable if AEON or its vicarious agents violate a substantial contractual duty. In such case, however, the liability of AEON shall be limited to typical damages and damages foreseeable at the time the contract is entered into.
The qualification under 8.1 to 8.4 shall not be applicable to breaches of obligations of AEON or its vicarious agents that result in injury to life, limb or body.
Any warranty of manufacturers shall not be affected.
The qualification under 8.1 to 8.4 shall not be applicable to mandatory liability provisions under the law, such as the Product Liability Act.
AEON shall have unlimited liability for breaches caused by gross or intentional negligence.
The statutory limitation periods shall apply.
The aforementioned liability limitations shall also apply in favor of bodies, employees and vicarious agents of AEON regarding any personal liability.
8.6. Within the statutory warranty period, AEON shall effect performance by subsequent improvement or replacement delivery without additional cost to the customer. Consumers can choose fulfillment of warranty by improvement or replacement.
AEON reserves the right, in accordance with statutory laws, to refuse a chosen way of warranty fulfillment, especially if such fulfillment causes unreasonable cost and another way of fulfillment does not provide relevant disadvantage to the consumer.
In case of contacts with traders, AEON has the right to choose the way of warranty fulfillment. If subsequent performance fails or is unreasonably delayed for reasons under the control of AEON, the customer shall be entitled to withdraw from the contract or demand that the purchase price be reduced.
Compensation for damages may apply under certain statutory prerequisites.
Withdrawal shall be excluded if AEON’s breach of duty is merely insubstantial.
8.7. In the event of a defect, the customer shall grant AEON a reasonable period of time and opportunity for subsequent improvement.
AEON shall address defects affecting its contractual obligations. To fulfill warranty, AEON may replace equipment or parts of equipment or implement technical modifications.
Prior to replacement of any equipment, the customer shall remove programs, data, data storage media, changes or superstructures. Ownership of replaced equipment goes to AEON. The customer shall comply with the recommendations of AEON and/or the manufacturer regarding data carriers, maintenance resource and other specific auxiliary equipment to avoid impact on function.
8.8. Operating instructions shall be adhered to. In case of dysfunction of devices, instructions for error analysis shall be consulted before repairs are requested from AEON.
8.9. If it is determined that AEON provides services due to defects alleged by the customer, without there actually being a case for warranty, the customer shall reimburse AEON for the resulting expenditure unless the customer is not responsible for such allegation of defect.
8.10. If not provided with information on the reason for return and opportunity to check any claimed defect, AEON may refuse acceptance of returned products. Elimination of accepted defects shall be effected at no additional cost to the customer on AEON’s or the customer’s premises at AEON’s choice. With the exception of consumers, the customer shall bear any additional cost for cure, such as transport insurance or packaging.
8.11. Both prior to and after receiving goods and services from AEON to cure defects, the customer shall back up the data on his computer systems at sufficiently regular intervals. AEON shall not be liable for loss of data.
8.12. The warranty period does not begin anew due to the subsequent fulfillment or replacement delivery where this has been provided for reasons of goodwill.
8.13. In case of qualified claims, retention of payment shall only be acceptable if the claimed defect is reasonably proportional to the purchase price. Traders may retain payment only if a claimed defect is justified beyond doubt. Merchants can only retain payment if claimed defects are free of doubt.
8.14. In case of premature contract termination, AEON will charge the customer compensation for use of a product at 0.1 % of the value of goods per day. Both contract partners reserve the right to provide evidence for lower or higher loss of value or prove no loss of value.
8.15. In case of contracts with merchants, only direct purchasers can claim defects. These rights are not transferrable.
8.16. Beyond the warranty period, any support AEON provides to the customer in handling warranty claims against manufacturers is a gesture of goodwill and follows the warranty terms of the manufacturer. Liability limitations are defined in section 10.
9. Recession and approval
9.1. In general, cancellation of the contract is impossible. If AEON accepts cancellation of the contract in writing, AEON shall have the right to charge the customer for its expenditures. If a customer does not accept a delivery, the customer is in default without demand note and deadline.
9.2. A service is considered accepted without reservation if the customer does not claim about any defects within 14 days in writing. The same applies to partial service deliveries.
10.1. AEON accepts liability only as stipulated in this CGoS. In addition, AEON accepts claims for damages – especially from illegal act, negligence at contract closure or other breach of duty – only in case of deliberate intention or gross negligence or in case of claims from contract-relevant duty (those duties required for orderly execution of the contract) related to §§ 1, 4 of the Product Liability Act.
This liability exclusion shall not be applicable to breaches of obligations of AEON or its vicarious agents that result in injury to life, limb or body. This liability exclusion shall also not apply when a provision guarantee has been agreed or in cases of fraudulent concealment of a deficit according to § 444 of the German Civil Code.
The aforementioned liability limitations shall also apply in favor of bodies, employees and vicarious agents of AEON regarding any personal liability.
10.2. AEON shall not accept any liability for loss of profit, absence of savings, or damage claims by third parties and further consequential damages as well as loss of data. Claims for damages laps after 6 months unless the customer is a consumer.
10.3. The customer shall exempt AEON from any third party claims beyond liability as defined here.
11.1. The newest Incoterms shall apply to these GCoS, including delivery to foreign countries.
11.2. Export of products from Germany requires appropriate authorization. The customer shall be responsible to obtain any import or export permits. The customer shall be responsible for adherence to any regulation until delivery to the consumer.
11.3. Addition of value-added tax is omitted only if preconditions for tax exemptions for exports are met.
B- Special provisions for media production
12. Commissioned production and services
Provisions in this section apply in addition to provisions set out in Part A of these GCoS for the business area media production, commissioned production and –services such as preparation of media, ads, photographs, training sessions, education and communication, music, provided the customer is not a consumer.
12.1. The subject of the contract shall be defined in AEON’s offer or order confirmation. AEON shall have the choice of the modality of fulfilling the contract. The customer does not have authority to give directives; however, AEON will aim to accommodate the customer’s wishes.
12.2. If the subject of the agreement is consulting or advertisement, the customer shall not engage other consultants or advertising agencies in the field of activity during the term of the agreement without consulting AEON.
12.3. AEON will conclude separate agreements with actors, models, background actors, etc., unless the customer takes responsibility for such contracts. AEON shall inform the customer in writing about contractual clauses agreed with third parties. The customer shall be liable to adhering to such third party agreements in using products prepared by AEON. This applies for example, but not exclusively, for advertisement materials.
12.4. For material provided by the customer, AEON shall not be liable to adhere to any third-party terms. The customer shall be liable for adherence to any legal obligations, including copy rights. In such cases, the customer will indemnify AEON from adhering to any third party claims.
12.5. The customer shall be liable to compliance of media provided by AEON, when used for public information or advertisement, with unfair competition law and advertising law. AEON will not take any liability for these aspects, however, AEON will notify the customer of any such risks it becomes aware of during contract fulfillment.
12.6. In no case AEON takes liability for factual statements on products and services of the customer. AEON does also not take liability for adherence of any ideas, suggestions, proposals, concepts, drafts, etc. provided to the customer to patent laws, copyright, or trademark laws or aspects.
12.7. The customer shall use results of services provided by AEON only in the context agreed in the contract. Copyright for such services remains with AEON.
12.8. AEON shall only accept liability for damages due to deficiencies, delay or failure to fulfill obligations of the manufacturer or vendor of advertising materials or caused by people working on behalf of AEON in case of deliberate intention or gross negligence.
12.9. AEON shall retain 3 specimen copies of all advertising media or other media produced by AEON. At its own cost, AEON may produce additional copies of materials produced for house advertising, including submission for competitions.
12.10. In case of premature termination of the contract, AEON is entitled to charging the customer for services performed until contract termination. In addition, in cases where the customer terminated a contract prematurely, AEON is entitled to a compensation of damages of 35 % of the remaining amount of the contracted services. AEON reserves the right to claim further damages unless the customer proves otherwise.
C - Special provisions for software
13. Software license and warranty
13.1. The software license is granted with delivery of the software or the dongle. The license fee (current price at the time of delivery) becomes due with delivery of the software. With acceptance of the software delivery, the customer accepts and is bound to the software license terms.
13.2. The customer is obliged to adhere to the software license terms and shall be liable in case of violation of any of the license terms.
13.3. The customer shall protect the software from access by third parties. People using the software for and by order of the customer are not considered third parties. All rights to the software, particularly copyrights, ancillary copyrights and neighboring rights shall remain with AEON or with the respective rights holders, respectively.
13.4. For commercial customers, any reproduction or redistribution of the software not in accordance with the software license terms is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators can be prosecuted to the maximum extent possible.
13.5. Unless explicitly agreed, maintenance and updates of the software and accompanying documentation are not part of the agreement.
13.6. Unless agreed otherwise, AEON is not obligated to instruct the customer in use of the software delivered.
13.7. As far as technically possible, software is never entirely error-free. In case of significant deficiencies, instructions to avoid consequences of a deficiency are considered sufficient remedy.
13.8. AEON disclaims all warranties and conditions with regard to the software not produced by AEON, including fitness for a particular purpose and fit to other software products. According to state of technology, AEON does not guarantee uninterrupted or error-free function of the customer’s setup in these cases or full resolution of any error or malfunction in context of the program service.
D - Final provisions
14.1. Transfer of rights and obligations of this contract to third parties requires AEON’s written agreement.
14.2. AEON is processing and storing customer-related data taking into account provisions of the German Data Protection Act. AEON advises customers that order and address information of the customer are saved for the purpose of processing business transactions and warranty claims and are possibly also passed on to associated companies within the scope of order processing. Address data may also be used to transmit advertising information on AEON to the customer. Otherwise, customer-related data are not transferred to third parties.
14.3. German law shall apply to the contractual relationship between the customer and AEON.
14.4. Claims from the contractual agreement become time-barred within 3 years of the agreement becoming valid, unless shorter limitation periods are defined by law or this GCoS.
14.5. Place of execution for all obligations shall be Hanau. The court of jurisdiction for all disputes with customers who are registered entrepreneurs or a legal entity in public law is agreed to be Hanau.
14.6. Should individual provisions of these GCoS are or become invalid; the remaining provisions shall not lose their validity as a consequence.