As of 01/09/2023
Terms and Conditions
1.1 The following Terms and Conditions apply to all current and future deliveries, services and offers of Oehm und Rehbein GmbH (“Oehm und Rehbein”). By using the services of Oehm und Rehbein, the Customer agrees to these Terms and Conditions.
1.2 Conflicting terms and conditions of the Customer shall not become part of the contract, even without express objection and in the case they are acknowledged and delivery takes place, unless Oehm und Rehbein has consented to their validity in writing. This consent requirement applies in particular even if the Customer refers to its terms and conditions in the context of the order confirmation and they are not expressly objected to by Oehm und Rehbein.
1.3 Individual agreements and statements shall take precedence over these Terms and Conditions. The Terms and Conditions of Oehm und Rehbein in turn take precedence over other supplementary Terms and Conditions of Oehm und Rehbein, such as the Technical Conditions, Order Notes and the Terms and Conditions for Service Agreements.
1.4 If software from third-party manufacturers is included in the scope of the contract, the licence terms of the third-party manufacturer form part of the contract and must be adhered to by the Customer.
1.5 Deviations from these Terms and Conditions as well as amendments and supplements to contracts that have already been concluded and are subject to the Terms and Conditions of Oehm und Rehbein GmbH require the written form.
2. QUOTES AND CONTRACT CONCLUSION
2.1 Quotes issued by Oehm und Rehbein are subject to confirmation and non-binding, particularly with regard to prices, quantity, delivery period, availability and ancillary services.
2.2 Oehm und Rehbein reserves the right to make changes to the quote documents and/or the order confirmation where unavoidable in order to comply with legal or technical standards.
3. SERVICES OUTSOURCED TO THIRD PARTIES
Oehm und Rehbein is entitled to outsource owed services to third parties.
4. DUTY TO INSPECT GOODS AND NOTIFY DEFECTS
If the Customer is a merchant, they are responsible for testing and inspecting the delivered software, software parts or hardware immediately upon receipt for defects. Identifiable defects must be reported immediately to Oehm und Rehbein.
5.1 The prices are listed as net amounts, excluding packaging and freight charges. The prices listed in the order confirmation plus the respective statutory VAT are decisive. Deliveries and services for which fixed prices are not expressly agreed shall be invoiced at the list prices valid on the date of delivery.
5.2 Unless a fixed price has been agreed, services shall be invoiced according to the price list valid at the time the order is accepted.
5.3 Oehm und Rehbein shall not be bound by the stated prices if a delivery date more than 4 months after receipt of the written order confirmation is agreed. In this case, Oehm und Rehbein shall issue a new quote with the prices valid at the time of delivery.
6. DELIVERY AND DELIVERY PERIOD
6.1 Unless expressly agreed otherwise, delivery of the goods shall take place “ex works” from the headquarters of Oehm und Rehbein in accordance with the regulations of INCOTERMS 2020. Accordingly, the risk transfers to the Customer or third parties appointed by the Customer upon delivery.
6.2 Partial deliveries and services are permissible to a reasonable extent. These must always be regarded as separate business transactions.
6.3 The deadlines specified by Oehm und Rehbein, in particular delivery dates, are only binding if they have been agreed as binding in writing or electronically.
6.4 The delivery date shall be determined by mutual agreement between the Customer and Oehm und Rehbein. The delivery date must be confirmed in writing or electronically by both parties. The Customer may request a change to the agreed delivery date up to four weeks prior to the original delivery date. After this period, the delivery date can only be changed with express written consent from Oehm und Rehbein.
6.5 Changes to orders shall result in the cancellation of agreed delivery dates and periods, unless otherwise agreed.
6.6 Delivery periods and performance periods shall be extended accordingly in the event of force majeure and any other obstacles not attributable to Oehm und Rehbein which have considerable influence on the delivery or performance, in particular in the event of a strike or lockout at the premises operated by Oehm und Rehbein, its suppliers or its subcontractors.
7. DEFAULT OF ACCEPTANCE
7.1 Upon the delivery of the ordered hardware and/or software on the agreed delivery date, the delivered goods shall pass to the Customer. If the Customer refuses to accept the delivered goods on the agreed delivery date or if the Customer has missed the agreed delivery date for reasons which are within its responsibility, such as incomplete or incorrect statements, delays in the provision of information or not being present, this shall be deemed equivalent to delivery.
7.2 If the standard or individual software of Oehm und Rehbein is installed, the Customer - at the request of Oehm und Rehbein - shall test it together with an employee from Oehm und Rehbein without undue delay. If the software works as contractually agreed, the Customer shall accept the delivery in writing without undue delay.
7.3 Oehm und Rehbein may assert its legal rights should the Customer fail to accept the delivered goods. If the Customer is in default of acceptance for the ordered goods, Oehm und Rehbein shall be entitled to withdraw from the contract or claim damages for non-performance after setting a reasonable grace period of up to 14 days. If Oehm und Rehbein claims damages, this shall amount to 30% of the order value, unless the Customer can prove a lower amount of damages or Oehm und Rehbein GmbH a higher loss.
8.1 Statutory provisions apply to the rights of the Customer in the event of material defects and defects in title pertaining to the software and hardware at the time of assertion, unless otherwise stipulated and permitted below.
8.2 The Customer is aware that, as a rule, software cannot be delivered completely error-free in light of the wide range of applications and complexity of software. Oehm und Rehbein shall perform its services in accordance with the generally recognised rules of technology and with the level of care that is customary in the industry at the time the order is placed. Oehm und Rehbein makes no assurance with regard to compatibility with any software or hardware components used by the Customer that differ from those expressly mentioned in the product specification. The complete absence of errors in the software is not an agreed quality, but only that the software has no program errors that affect its contractually agreed usability more than only slightly.
8.3 Oehm und Rehbein warrants that the software, when used in accordance with the contract, complies with its specifications at the time of delivery and does not contain defects which more than insignificantly affect the suitability of the software for the contractually agreed use. Non-material deviations from the product specification are not considered defects.
8.4 The warranty excludes defects that are not attributable to Oehm und Rehbein. This applies in particular to defects in materials or software provided by the Customer. Oehm und Rehbein shall not be obliged to provide warranty coverage if faults in the hardware or software have occurred after changes in the operating conditions, after operating errors, after interventions in the hardware or the software program (such as changes, adaptations, connection to other programs) and/or after use contrary to the contract, unless the Customer proves that the faults were already present at the time the contractual software was delivered or are not causally related to the aforementioned events.
8.5 If Oehm und Rehbein does not cover installation, training and instructions on how to operate the delivered software and/or hardware within the scope of its performance obligation, the Customer is responsible for the proper installation and operation of the delivered software and hardware. If Oehm und Rehbein installs its software on third-party hardware at the Customer's request, the Customer shall bear the risk as well as the cost for the time required for to install the software. This also applies to third-party software.
8.6 Oehm und Rehbein shall be entitled to remedy the defect either by subsequent improvement or by new delivery at its own discretion. If Oehm und Rehbein opts to subsequently improve the software, this can be fulfilled by providing a new release.
8.7 The Customer may demand either a new delivery or subsequent improvement within a reasonable period of time if the respective form of subsequent fulfilment is deemed unreasonable for it.
8.8 Warranty claims must be submitted in writing, with text form being sufficient for assertion; they must include a precise description of the defect subject to complain. Oehm und Rehbein shall, at its own discretion, either provide directions for the correction of the fault or take other suitable measures to correct the fault, such as sending data carriers or information sheets which enable the fault to be corrected. The rectification of defects by Oehm und Rehbein may also be carried out by written, electronic or telephone instructions sent to the Customer.
8.9 If a defect reported by the Customer is found to not exist or if the defect cannot be attributed to software, software parts or hardware from Oehm und Rehbein under warranty, Oehm und Rehbein shall be entitled to charge the Customer the expenses incurred by the analysis and other processing in accordance with the current price list published by Oehm und Rehbein.
8.10 Warranty coverage is excluded if the Customer fails to comply with its obligation to inspect the delivered goods and notify defects upon acceptance of the goods contrary to Section 4. If changes are made to the delivered software or hardware by the Customer or by third parties, the warranty claim shall lapse unless the Customer proves that the defect is not due to these changes.
8.11 Unless otherwise agreed, claims for defects pertaining to quality and/or defects of title shall become statute-barred within one year from the date of delivery. This shall not apply in the case of Section 9.6 or if a defect was caused intentionally or with gross negligence, or if the Customer claims compensation due to injury to life, body or health that can be attributed to the defect, or if the defect results from the breach of a guarantee.
8.12 Within the warranty period, hardware repairs shall be carried out exclusively at Oehm und Rehbein. During the warranty period, Oehm und Rehbein shall also bear the standard transport costs for shipping the hardware (excluding express and special deliveries).
8.13 Oehm und Rehbein shall not be liable for damage to recorded data and installed software. In order to reconstruct data, the Customer must in each case provide Oehm und Rehbein with its last complete data backup of the system.
9. REDUCTION OF THE PURCHASE PRICE OR CANCELLATION
9.1 If Oehm und Rehbein fails to successfully render subsequent fulfilment within a reasonable period of time, which encompasses at least two attempts at subsequent improvement, the Customer is entitled to set a reasonable final grace period for Oehm und Rehbein which permits an adequate number of attempts at subsequent improvement. If Oehm und Rehbein also fails to remedy the defect within this final grace period, the Customer is entitled to demand a reduction in the purchase price or to cancel the contract at its discretion.
9.2 There is no need to wait for the Customer to set a grace period if this is no longer reasonable for the Customer, in particular if Oehm und Rehbein has earnestly and definitively refused subsequent fulfilment.
9.3 Subsequent fulfilment shall not yet be deemed to have ultimately failed after the second subsequent attempt. Oehm und Rehbein is free to make as many attempts at subsequent fulfilment as it wishes during the grace periods.
9.4 In addition to cancellation or reducing the purchase price, if Oehm und Rehbein are at fault for the lack of subsequent fulfilment, the Customer can claim compensation instead of performance.
9.5 In the event of a justified cancellation, Oehm und Rehbein shall be entitled to demand adequate compensation for the benefit gained by the Customer from the use of the software, software parts and/or hardware in the past until the cancellation of the contract. This compensation for use is determined on the basis of a four-year period of use of the software, software parts and/or hardware, whereby a reasonable deduction for the depreciation of the delivered goods due to the defect which led to the cancellation is provided for.
9.6 In the case of malice and where a guarantee has been assured by Oehm und Rehbein, the legal provisions for defects pertaining to quality and defects of title shall remain unaffected. This also applies if a defect was caused intentionally or with gross negligence or if the Customer claims compensation due to injury to life, body or health that can be attributed to the defect.
10. PROCEDURE IN THE CASE OF ALLEGED DEFECTS OF TITLE
10.1 If a third party asserts claims against the Customer for infringement of intellectual property rights by the software, its name or its documentation, the Customer must inform Oehm und Rehbein without undue delay and leave defending against the corresponding claims to Oehm und Rehbein. The Customer shall provide Oehm und Rehbein with all reasonable assistance required in this in this regard. In particular, the Customer shall provide Oehm und Rehbein with all information required on the use and possible processing of the software programs as far as possible in writing and provide Oehm und Rehbein with all necessary documents.
10.2 If third-party rights are violated, Oehm und Rehbein may, at its behest, remedy the situation by:
a. obtaining from the person entitled to dispose of the property right sufficient rights of use in favour of the Customer for the purposes of this contract; or
b. modifying the infringing software with no impact on its function, or only effects deemed acceptable to the Customer; or
c. replacing the infringing software with no impact on its function, or only effects deemed acceptable to the Customer with another software, the use of which in accordance with the contract does not infringe the property rights of third parties; or
d. providing a new program version, the use of which in accordance with the contract does not violate any property rights of third parties.
11.1 Oehm und Rehbein shall be liable for damages regardless of the legal grounds to the extent set out below.
11.2 Oehm und Rehbein shall be liable without limitation for damages caused intentionally or through gross negligence by Oehm und Rehbein, one of its vicarious agents or legal representatives.
11.3 In the event of damages resulting from injury to life, body or health, Oehm und Rehbein shall be liable without limitation, even in the event of a simple negligent breach of duty on the part of Oehm und Rehbein, one of its legal representatives or vicarious agents.
11.4 Liability shall also be unlimited in terms of amount for damage caused by serious organisational fault on the part of Oehm und Rehbein and for damage caused by the absence of a quality guaranteed by Oehm und Rehbein.
11.5 Furthermore, Oehm und Rehbein GmbH shall bear unrestricted liability for damages resulting from the breach of obligations pursuant to Section°241 paragraph 2 of the German Civil Code (BGB), insofar as the services are no longer reasonable for the Customer, as well as for initial infeasibility and other cases of mandatory statutory liability.
11.6 In the event of a breach of essential contractual obligations, Oehm und Rehbein shall be liable in the absence of any of the cases mentioned in Sections 11.2 to 11.5, limited in amount to the typical damage foreseeable under this kind of contract.
11.7 Any further liability for damages is excluded, in particular liability shall be excluded regardless of fault. This exclusion also extends in each case to compensation for damages instead of performance, regardless of the legal grounds, the breach of contractual obligations, tort and claims for the compensation of expenses in accordance with Section 284 BGB.
11.8 Liability under the Product Liability Act shall remain unaffected by the above.
11.9 If a loss can be attributed both to a fault of Oehm und Rehbein and to a fault of the Customer, the Customer must allow its partial responsibility to be taken into account.
11.10 The Customer is required to prevent both unauthorised physical and unauthorised digital access to the contractual hardware and/or software by employing appropriate state-of-the-art measures. The Customer is responsible for implementing appropriate security measures to protect the hardware and/or software from any cyber-attacks. In addition, the Customer must ensure that all access permissions, passwords, encryption and other security mechanisms are activated, adequately managed and regularly updated. Oehm und Rehbein shall not be liable for damages caused by unauthorised access to the contractual hardware and/or software due to cyber-attacks, insofar as these damages are due to a lack of implementation of adequate security measures by the Customer.
11.11 The Customer is responsible for regularly backing up its data. Oehm und Rehbein shall not be liable for the loss of data if the damage would not have occurred if the data had been properly backed up, for which the Customer is responsible. Proper data backups are assumed if the Customer verifiably backs up data on a daily basis, thereby ensuring that the data can be restored with reasonable effort. In the event of a loss of data caused by Oehm und Rehbein - unless caused intentionally or through gross negligence - Oehm und Rehbein shall solely be liable for the costs of restoring the data from the backup copies created by the Customer and for restoring the data that would have been lost even if the data had been backed up correctly.
11.12 In the event that Oehm und Rehbein is unable to provide the service due to force majeure, strikes, unrest or other disturbances not attributable to Oehm und Rehbein, Oehm und Rehbein shall be released from its obligation to perform. Oehm und Rehbein shall not be liable for any damage and/or consequential damage resulting from these interruptions in performance.
11.13 The Customer's claims for damages against Oehm und Rehbein shall become statute-barred after 2 years. The limitation period shall commence on the date of the damage incident.
11.14 The Customer may withdraw from the contract due to a breach of duty which cannot be attributed to a defect, only if Oehm und Rehbein are responsible for the breach of duty and the other legal requirements are met. Cancellation is excluded if the breach of duty is minor.
12. PAYMENT TERMS
12.1 Unless otherwise agreed, the prices shall be due for payment upon delivery or acceptance in accordance with Sections 6 and 7.
12.2 Offsetting or withholding payment is only permissible if counter claims of Oehm und Rehbein have been recognised in writing or have been adjudicated by a court and/or by law.
12.3 If the Customer owes several payments at the same time, its liabilities arising from licence agreements, then from other services and supplies provided by Oehm und Rehbein, and then its liabilities arising from maintenance contracts and other ongoing obligations are settled with an incoming payment.
12.4 The Customer is obliged to pay the agreed prices regardless of the chosen payment method. This obligation exists regardless of whether the financing, leasing or other means of payment arranged by the Customer falls through for any reason. Even in the event that the financing or another payment method ceases, the Customer remains fully liable and obliged to pay the agreed prices.
12.5 Without the need for a reminder, the Customer automatically defaults if payment is not rendered within 30 days after receipt of the invoice. If the Customer is in default with the payment, Oehm und Rehbein are entitled to charge interest in accordance with Section 288 para. 2 BGB as default compensation. The assertion of further claims for compensation remains unaffected.
13. RETENTION OF TITLE
13.1 Oehm und Rehbein reserves the ownership of all delivered hardware products until the full payment of the purchase price. Full rights to use the software are granted subject to full and unconditional payment of the purchase price. As long as this condition is not fulfilled, the rights of use are only granted for a limited period and may be revoked by Oehm und Rehbein by means of a declaration of contract cancellation. Should Oehm und Rehbein assert its right of retention, the Customer's right to use the software shall expire as soon as this right of retention comes into force, unless Oehm und Rehbein informs the Customer otherwise. In this case, the Customer shall also be required to delete all program copies it has produced and to return or destroy all existing original data carriers. The hardware products supplied by Oehm und Rehbein as well as the goods subject to the retention of title which replace them in accordance with the following provisions are hereinafter referred to as “reserved goods”. If the Customer is a merchant, the above reservations apply until the complete payment of all present or future claims that arise from the business relationship. This also applies if individual or all claims of Oehm und Rehbein have been included in a current invoice and the balance has been settled and recognised.
13.2 The Customer shall store the reserved goods with the due care of a prudent businessman for Oehm und Rehbein free of charge and insure them at its expense against fire, water, theft and other risks of damage at replacement value. The Customer hereby assigns its corresponding claims from the insurance policies to Oehm und Rehbein with the conclusion of this agreement. Oehm und Rehbein GmbH accepts this assignment.
13.3 The Customer hereby assigns all receivables arising from the resale of the goods to Oehm und Rehbein. Oehm und Rehbein is irrevocably entitled to collect these receivables. At the request of Oehm und Rehbein, the Customer shall disclose the assigned claims and their debtors. Oehm und Rehbein GmbH is entitled to disclose the assignment to the debtor of the Customer.
13.4 Any processing or further processing of the goods supplied by Oehm und Rehbein takes place on behalf of Oehm und Rehbein. Oehm und Rehbein hereby acquires ownership rights in the amount of the market value of the reserved goods arising from the processing or further processing.
13.5 If the reserved goods are combined with other items, Oehm und Rehbein acquire joint ownership of the new object in the ratio of the value of the reserved goods to that of the other items at the time of processing.
13.6 If the Customer acts in violation of the contract, in particular if the Customer defaults in payment or is expected to cease payment, Oehm und Rehbein shall be entitled to take back the reserved goods at the Customer's expense or to demand the assignment of any claims of the Customer against third parties. These rights also apply if the secured claims are statute-barred. Oehm und Rehbein is entitled to sell the reserved goods if necessary and to satisfy outstanding claims from the proceeds of the sale.
13.7 In the case of that Oehm und Rehbein is entitled to repossess the reserved goods in accordance with the preceding paragraph, Oehm und Rehbein reserve the right to collect the reserved goods still in the possession of the Customer. The Customer must allow the employees of Oehm und Rehbein GmbH authorised to collect the reserved goods to enter its business premises during office hours, even without prior notification.
13.8 To demand the exercise of the rights arising from the reservation of title or a return of the goods shall not be considered a cancellation of the contract.
13.9 The retention of title shall be released at the request of the Customer if the collateral value exceeds the claims to be secured by more than 10%. The choice of the items to be released afterwards lies with Oehm und Rehbein.
13.10 If third parties access the reserved goods, in particular by initiating attachment proceedings, the Customer will immediately inform them of the ownership of Oehm und Rehbein and inform Oehm and Rehbein thereof in order to permit it to enforce its ownership rights. If the third party is unable to reimburse Oehm and Rehbein for the legal or extra-judicial costs incurred in this connection, the Customer is liable for this to Oehm and Rehbein.
14. EXTENT OF THE GRANTING OF RIGHTS
14.1 Oehm und Rehbein shall retain the copyright and industrial property rights as well as the exploitation rights to the delivered software and hardware, unless otherwise agreed in writing. The proprietary notices - also those of a third party - stated on the program carrier or the packaging must be observed.
14.2 Unless expressly agreed otherwise, Oehm und Rehbein shall grant the Customer the unlimited right of use or, in the case of temporary licence agreements, the time-limited right of use, to use the software or licences contained in the provided program carrier in accordance with the contract and for the agreed purpose. Reproduction, transfer and use for a purpose not agreed or provided for in the contract are not permitted. A transfer of the above right to third parties by the Customer requires the express written consent of Oehm und Rehbein. In the event of a breach of the licence conditions, the Customer is required to pay a lump sum for damages equal to twice the licence fee paid. This shall be without prejudice to the assertion of further damages. The Customer is at liberty to provide evidence that Oehm und Rehbein has suffered less damage.3.3 If no corresponding agreement has been made, the Customer must ensure that the necessary conditions are met - in accordance with the version of the Oehm und Rehbein manual valid at the time of conclusion of the contract - and that sufficient working space is available. Use in a network requires a separate granting of rights.
14.3 The processing of the contractual software and of the software protection circuit is not permitted, unless mandatory statutory provisions conflict with this or deviating terms are agreed in the licence agreement or in the applicable business terms. Oehm und Rehbein offers to fix software defects within the scope of its software maintenance contracts.
14.4 The decompiling or disassembling of the contractual software (reverse engineering) and the removal of the software protection circuit are also prohibited. Oehm und Rehbein reserves the right, upon request, to provide the Customer with information required to achieve the interoperability of the contractual software with other programs in return for appropriate remuneration. When using this information, the Customer must observe the restrictions stipulated in Section 69e(2) of the German Copyright Act.
15. ASSIGNABILITY OF CLAIMS
The Customer is not entitled to assign its claims from the contracts concluded with Oehm und Rehbein without the consent of Oehm und Rehbein or to transfer any other rights or obligations arising from the contracts concluded with Oehm und Rehbein, in whole or in part, to third parties. This also applies to warranty claims. Consent shall be given if the Customer’s interest in question is deemed worthy of protection.
16. DATA PROTECTION
The Customer consents to the collection, processing, use and storage of its personal data insofar as these are necessary for the execution of the contractual relationship. If Oehm und Rehbein no longer have a legitimate interest in storing the data, the Customer can request the deletion of the data at any time.
17. FINAL PROVISIONS
17.1 If one or more provisions are found to be legally unenforceable, the remaining parts of these conditions shall remain binding. In place of the invalid, unenforceable or missing provision, the contractual partners shall agree on a legally permissible provision they would have originally agreed on taking into account their economic and legal objectives had they been aware of the invalidity, infeasibility or lack of the corresponding provision at the time the contract was concluded.
17.2 The place of performance for all deliveries and services is the registered office of Oehm und Rehbein. If the Customer is a merchant or has its registered office abroad, the exclusive place of jurisdiction is the registered office of the company.
17.3 This contract is exclusively governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the provisions of international private law.
17.4 These General Terms and Conditions are available in a German and an English version. In case of discrepancies and for purposes of interpretation, the German wording shall prevail.
17.5 These Terms and Conditions apply from 1st September 2023. They shall become invalid as soon as new Terms and Conditions are announced to the Customer in writing, with text form being sufficient. The new Terms and Conditions shall apply from the announcement date onwards.