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General Terms and Conditions of Electric Paper Informationssysteme GmbH hereafter referred to as „Electric Paper GmbH“
Electric Paper GmbH solely enters into contracts for the supply of software, software maintenance, operating instructions and user manuals in addition to other services, based on these terms and conditions. These terms and conditions therefore apply to all supplies and services, even where not again expressly agreed.
In the context of these terms and conditions the term software, in addition to the actual software, also applies to program documentation, instructions, user manuals and software maintenance, with the exception of data mediums and other accessories.
Specifications in flyers, attachments, documentation, instructions and manuals as well as pricing, is subject to change and non-binding unless otherwise expressly defined in such documents. These specifications include descriptions, but not the assurance of characteristics unless otherwise expressly defined by such specifications. Purchase orders, with the exception of cash transactions, must be confirmed by Electric Paper GmbH in writing to be effectively agreed. Purchase orders not declined by Electric Paper GmbH within 4 weeks from the time of receipt are considered placed.
Supplementary agreements, amendments and addendums or assurances of characteristics must be agreed or confirmed in writing by Electric Paper GmbH to be binding.
Prices or price lists valid at the time the purchase order is placed are honored by Electric Paper GmbH for a period of 4 months from the time the order is placed. In the event longer delivery dates or delivery terms are agreed, prices or price lists valid at the time of shipment apply unless otherwise agreed.
All prices are without cash discount or other agreed discounts, subject to the respective VAT rate applicable at the time the order is placed or 4 months following such time. The respective applicable prices or price lists – unless otherwise agreed or specified – do not include packaging costs, shipping, COD fees, duties, or similar fees, freight charges, insurance cost or other costs arising from shipping or transport.
International or foreign currency transactions are subject to the respective prices applicable at the point of sale in accordance with above clauses §2.1 and §2.2.
Unless otherwise agreed, due dates and payments are subject to the law.
Electric Paper GmbH expressly reserves the right to decline drafts and checks; these are always only accepted as payment. Discount, check and draft fees are payable by the buyer, payable immediately.
All goods remain the property of Electric Paper GmbH until paid in full or, for checks and drafts, until cleared.
In the event the buyer is in payment default, Electric Paper GmbH shall be entitled to charge interest in the amount of the rate charged by commercial banks for open overdraft credits, but no less than 4% above the respective prime rate.
Offsetting with counter claims is prohibited unless said are undisputed or determined without further legal recourse.
Delivery dates and delivery terms agreeable as binding or non-binding, must be confirmed in writing.
In the event of force majeure, strike, the inability to perform of Electric Paper GmbH or one of its suppliers through no fault of their own, as well as unfavorable weather conditions, the delivery term is extended by the duration of such hindrance.
In the event Electric Paper GmbH is delayed in its duties no compensation of indirect damage is granted provided the breach of contract is based on gross negligence or malice.
The buyer shall only be entitled to compensation provided such damage was the result of malice or gross negligence of Electric Paper GmbH and/or its agents. Extended liability pursuant to 287 German Civil Code is excluded. Electric Paper GmbH shall assign any claims for compensation against agents and/or suppliers to the customer for the purpose of assertion. The customer shall accept such assignment. In the event the assigned claims cannot be realized, the respective claims against Electric Paper GmbH are reinstated.
In the event the buyer does not assert the above rights he shall not be entitled to any entitlement for compensation due to failure to comply with delivery dates or delivery terms.
In the event the buyer - save the above stipulations – asserts a contractual or legal claim for compensation for damage caused by default and the buyer satisfactorily shows the existence of such damage by default, the extent of the damage is limited to 0.5% of the respective partial delivery/delivery not provided per full week, not to exceed 5% of the net price agreed for the delinquent shipment, namely the part of the software not usable due to the delay. No further entitlements exist.
In the event the software supplied does not correspond with the contracted specifications or other errors occur in the software provided, the buyer is obligated to promptly report these to Electric Paper GmbH in Lüneburg and/or its authorized dealers in writing in a comprehensible fashion reproducible with the software.
Software claims based on clause §5.1 shall be sent to Electric Paper GmbH at the buyer’s expense for review and correction. Electric Paper GmbH shall remedy justified claims free of charge. However, Electric Paper GmbH is also entitled to provide remedy through supply of different and equivalent software.
Any warranty for such software, programs or program portions is void when modified by the buyer or run on hardware not agreed and approved by Electric Paper GmbH. The warranty is further void for errors, malfunctions or damages due to improper operation, hardware or operating system failures, non-compliance with data backup requirements or other process beyond the scope of responsibilities of Electric Paper GmbH, or if Electric Paper GmbH is denied the opportunity to investigate the cause of the reported malfunction.
The warranty term corresponds with the law and starts with the close of contract and supply of software / hardware.
In the event Electric Paper GmbH is unable to remedy within 6 months from receipt of the written claim, the buyer shall at its discretion be entitled to a reduction of the compensation or rescission of contract for the respective software, observing the rights of Electric Paper GmbH pursuant to clause §5.2. This claim is void in cases pursuant to clause §5.3.
In the event the buyer asserts warranty claims this does not impact further existing contracts between him and Electric Paper GmbH..
Unless rights due to delivery delays, nonperformance, removal of defects or other obligations are expressly allowed by the above stipulations, other and/or further entitlements - especially also entitlements for compensation of indirect damages, e.g. for loss or faulty processing of data – of any type and regardless of the legal basis, are not allowed; this also applies to claims due to negligence at conclusion of the contract, positive breach of contract or non-contractual liability. For mandatory liability in cases of malice, gross negligence or the absence of promised characteristics or for other legal reasons, the extent of the claim for compensation is limited to the replacement of the immediate damage, the total not to exceed of the respective net order value. The buyer shall release Electric Paper GmbH of all third party claims beyond the accountability or extent of liability above stipulations.
The place of fulfillment and court of jurisdiction is Lüneburg. In the event the buyer is a corporate body under public law or a special asset under public law, the parties agree the court of jurisdiction for both parties for any disputes arising from the contracts or the associated legal relation to be the local and county court Lüneburg. The same applies if at the time the action is filed the buyer’s residence or typical abode is unknown or he has moved his residence or typical abode abroad.
These terms and conditions are binding for purchase orders and supplementary to contracts for work and services closed with Electric Paper GmbH.