General Terms and Conditions

GTC Sales

GTC Purchase

Maintenance Contract

 

GTC of Payment and Delivery

1. Application of terms and conditions, note on further conditions Service Contract gym80 software (active Service Contract)

  • These General Terms and Conditions of Trade shall apply exclusively to our business dealings with undertakings, legal persons under public law and public-sector fund assets. They shall not apply in business transactions with consumers. Consumers are natural persons who conclude the legal transaction for a purpose that cannot be attributed to either their commercial or independent professional activity. They shall also apply to all future business dealings, even if not explicitly agreed at a later date.
  • When placing an order or accepting an offer, the buyer shall acknowledge our General Terms and Conditions of Trade as solely binding and waive any subsequent revocation.
  • These Terms and Conditions shall be deemed to have been accepted at the latest on acceptance of our deliveries and performances.
  • References by the buyer to its terms and conditions of trade are hereby opposed. They shall not engage us even if we do not oppose them in each individual case.
  • Divergent terms and conditions of the buyer shall only apply if explicitly confirmed by us in writing.        
    This shall also apply to divergent agreements.
  • With the incorporation of the present Terms and Conditions of Payment and Delivery, all previous General Terms and Conditions of Trade shall cease to be valid. With the exception of remunerations and the contents of performances, we may make amendments to these Terms and Conditions of Payment and Delivery at any time, insofar as this becomes necessary due to changed circumstances (e.g. a change in the legislation or case-law) and is not unacceptable to the buyer. We shall notify the buyer of amendments in writing or electronically, provided this does not involve unacceptable expense. The buyer shall be entitled to object to the amendments within 14 days, failing which the amendments shall be deemed to have been accepted.
  • If the buyer orders software products (gym80 software), he places himself under obligation at the same time to conclude a service contract with further conditions, rights and obligations. The service contract is enclosed with corresponding offers or order confirmations and/or can be viewed on our Web site at: www.gym80.deunder the “Terms and Conditions” link, stored as a PDF file and printed.

 

2. Offers, orders, self-deliveries, variations

  • Our offers are always subject to confirmation and without obligation, unless in a given case we have made a binding offer in writing.
  • The purchase contract is entered into and becomes effective when we confirm in writing the acceptance of the order, or the purchase offer, of the buyer within a period of three (3) weeks after receipt or when we execute the delivery in full or partially. The sending of the declaration of acceptance within the prescribed time-limit shall suffice for the keeping of the term.
  • We enter into our contracts with the buyer exclusively subject to correct and timely self-delivery by our suppliers. This shall only apply if and insofar as the non-delivery cannot be attributed to us, especially if a congruent hedging transaction is concluded with our suppliers. The buyer shall be informed immediately of the non-availability of the performance. Any counter-performance already provided by the buyer shall be recompensed by us.
  • The customary variations in quality and colour are permitted for the goods to be delivered, and shall not justify any material defect, unless the variations contradict a promise or guarantee.

 

3. Prices

  • Orders for which fixed prices are not explicitly agreed shall be calculated at our list price plus VAT in force on the day of the order confirmation and shall be understood to be ex warehouse excluding packaging and delivery charges.
  • Offer or list prices shall be subject to confirmation until the order is confirmed in writing and shall not include VAT.
  • If in the case of orders with a lead time of more than 4 months or a delay in delivery of more than 4 months not attributable to us the production costs on which the order confirmation was based (material costs, wages, energy costs, charges, etc.), including any cost-specific ancillary expenses, change through no fault of our own by the time of delivery, we shall be entitled to amend our prices accordingly. This shall not apply if the buyer in turn has effectively and unconditionally bound itself contractually to a consumer in view of the object of sale. 

 

4. Terms and Conditions of Payment, delay, right of retention

  • Our invoices are due for payment immediately, on the 10th calendar day after the date of invoice, and are to be paid without delay, at the latest at the time of delivery. The deduction of discounts shall require separate written agreement. If the buyer fails to pay on time, we shall be entitled to demand default interest at the rate calculated by the commercial bank for our overdrafts, but at least 8 percentage points above the applicable basic interest rate.
  • Goods selected and taken from our warehouse shall be paid for immediately in cash, unless otherwise agreed in writing.
  • If goods ordered by the buyer are not in stock and have to be ordered, a deposit in the sum of 25 per cent of the agreed price shall be due when the contract of sale is concluded, and the remaining amount on the 10th calendar day after the date of invoice, and at the latest at the time of delivery.
  • On request, the buyer shall provide an irrevocable, unlimited, absolute bank guarantee in respect of the remaining purchase price, to the exclusion of the benefit of discussion.
  • We shall be entitled to first count payments against earlier debts. If costs and interest have already been incurred, we shall be entitled to count these payments first against the costs, then against the interest and finally against the main performance. If a provision to the contrary applies to the customer at the time of the performance, we can also elect to base our calculations on this provision.
  • A payment shall only be deemed to have been made once we have unrestricted access to the funds. Bills of exchange shall only be accepted for processing and subject to their bankability. Discounting costs and expenses shall be met by the buyer.
  • If the buyer fails to meet its payment obligations, in particular does not honour a cheque, the account does not show sufficient cover in the event of agreed direct debit procedures, stops its payments or if we become aware of other circumstances that call the buyer’s creditworthiness into question, we shall be entitled to demand payment of the entire remaining debt.
  • The retention of payments because of or offsetting with counterclaims by the customer is only permitted if the counterclaims have been established beyond dispute or with the force of law. In addition, rights of retention may only be exercised if they are based on the same contractual relationship.

 

5. Time of delivery and performance, force majeure

  • Indications of delivery times are only approximate. Binding delivery dates and times must be agreed in writing. The day of dispatch works or ex warehouse shall be deemed to be the day of delivery.
  • In all instances of force majeure, such as storms and natural disasters, and in cases of mobilisation, war, civil unrest, strikes, lockouts, hold-ups, restrictions and shortages of raw materials and supplies and similar events that are beyond our control, the delivery time shall be extended by the duration of the hindrance and a reasonable start-up time once the hindrance has been removed. If it becomes unreasonable for one of the parties to execute the contract due to these events, it may withdraw from the contract. Our customers shall be barred from making claims for compensation.
  • Part-deliveries within the delivery deadline are permitted, unless the customer cannot be expected to accept delivery in parts and at intervals.
  • If after the contract has been concluded it becomes apparent that our payment claim is threatened by the buyer’s lack of ability to pay, we can refuse the performance and allow the buyer a reasonable time in which to pay step by step in return for performance or provide security. If the buyer refuses or if the deadline is not met, we shall be entitled to withdraw from the contract and/or demand compensation.
  • Individual part-deliveries shall be demanded and arranged so that it is possible for us to manufacture and deliver as per the contract.

 

6. Shipment and transport, transfer of risk, default, compensation

  • Unless agreed otherwise, the buyer shall bear the costs of shipment (packaging and transport).
  • Unless the buyer has explicitly stipulated a particular shipment method, we shall be free to choose the shipment method. Shipment and transport shall be at the risk of the buyer.
  • The risk shall pass to the buyer as soon as the product has been transferred to the person responsible for transport or has left our warehouse by shipment. If shipment is delayed through no fault of our own, the risk shall pass to the buyer on receipt of its notice of readiness to dispatch. Unless explicitly agreed otherwise in writing, the “ex works”/“EXW” clause shall apply (Incoterms 2000). Delivery warehouse is Gelsenkirchen.
  • If for reasons beyond our control the object of sale is taken back, the buyer shall bear the risk until the object arrives at our works.
  • We shall be entitled, for the duration of the default of acceptance on the part of the buyer, to store the deliverables at the risk and expense of the buyer; to this end, we may also avail ourselves of a haulier or stockist. We are, however, under no obligation to take out an insurance policy for the delivery items.
  • During default of acceptance, the buyer shall pay us as compensation for the storage costs incurred per month a flat-rate of 1.0 per cent of the purchase price per month and without further proof. If further storage costs are incurred, we shall be entitled to demand these from the buyer against proof. The buyer remains free to prove that the actual storage costs are lower than the lump sum demanded.
  • If upon expiry of a grace period granted to it, the buyer refuses payment of due purchasing price, refuses acceptance of goods or states that it does not wish to accept the goods, we may refuse to complete the contract and demand compensation. We shall be entitled to choose to claim as compensation from the buyer either a flat-rate 25 per cent of the agreed purchase price or compensation of the actual loss incurred. Buyer may prove that actual loss incurred is lower than 25 per cent of the agreed purchase price.

 

7. Notice of defects and warranty

  • The buyer is obliged to inspect the goods delivered immediately for apparent defects, in particular apparent deficits or damage, and notify us of this in writing immediately, and at the latest within 5 days of receiving the goods. The timely sending of the notice of defect shall suffice for the keeping of the term. In the event of hidden defects the buyer is obliged to notify us of these in writing as soon as they are discovered, but at the latest within the period of limitation given in point 7 i). Notice of defects on the delivered software must be given in writing immediately, at the latest five (5) days after installation and commissioning.  The buyer shall bear the burden of proof for all requirements, in particular for the existence of the defect, the time of detection of the defect and for the notice of defects in due time. If the buyer neglects the aforesaid objections, we may not be held liable for defects. The notice of defects must document the defect in question in suitable fashion.
  • The buyer shall not be entitled to make claims due to defects in the object of sale insofar as the defect as caused by a failure to observe provisions concerning handling, maintenance and care of the object of purchase in operating instructions or prescribed maintenance intervals or the installation of parts or accessories, the use of which was not approved by us or the object of purchase was otherwise improperly handled. 
  • Any claims of the buyer due to defects are also excluded for used goods as well as for goods that are not contained in our product catalogue if the goods were manufactured as custom-made products at the request of the buyer.
  • If we did not manufacture the object of sale, we shall to the exclusion of our obligations to the buyer under the warranty relinquish our warranty claims against our presuppliers to the buyer, provided this does not adversely affect the buyer to an unreasonable extent. In particular, we shall be subordinately liable if and insofar as the presupplier fails to satisfy the claims of the buyer, even when enforced by the courts. We shall reimburse the buyer for any costs that cannot be collected from the presupplier.
  • If the product is defective, we reserve the right to first put the defect right through additional delivery or rework (supplementary performance), as we see fit. In the event of supplementary performance we shall be obliged to meet all expenses required to this end, in particular transport, road, labour and material costs, provided these are not increased by the fact that the object of sale was taken to a place other than the place of performance.
  • In accordance with the legal provisions, we are obliged to take back the new product or to drop (reduce) the purchase price, even without fixing the time-limit that would otherwise be necessary, if, as consumer of the purchased new chattel (consumer goods purchase), the buyer’s customer was able to demand that the buyer take the product back or drop (reduce) the purchase price because this product is defective or an equivalent resultant cancellation claim is made against the buyer (supplier regress). We are also obliged to reimburse any expenses incurred by the buyer, in particular transport, road, labour and material costs, in the relationship with the end-consumer within the context of subsequent performance on account of a defect of the product that existed at the time the risk passed from us to the buyer. These expenses shall be reimbursed in the form of credit notes for goods. Claims shall be barred if the buyer fails to properly comply with the obligation to examine and obligation to give notice of defects specified in § 377 of the German Code of Commercial Law (Handelsgesetzbuch – HGB).
  • The obligation in point 7 e) shall not apply to defects caused by advertising messages or other contractual agreements that do not stem from us or if the buyer has given a particular guarantee to the end-consumer. The obligation shall also not apply if the buyer itself was not obliged to exercise the rights under the warranty in respect of the end-consumer on the basis of statutory regulations or did not give notice of defect in respect of a claim made against it. This shall also apply if the buyer has accepted warranties in respect of the end-consumer that go beyond the legal measure.
  • If the subsequent performance comes to nothing, is impossible, if it is refused on as a whole by us genuinely and conclusively or if it is unacceptable to the buyer or a time-limit to be set by the buyer for the subsequent performance has expired without result or is superfluous according to the statutory provisions, the buyer shall be entitled to drop (reduce) the purchase price or demand that the contract be rescinded (withdrawal), as it sees fit. By declaring its withdrawal or demanding a reduction, the buyer waives its claim to delivery of a product free of defects. Claims of the buyer to compensation or reimbursement of wasted expenses shall only be allowed within the context of point 8 below, for the rest they are barred. As long as we fulfil our obligations to remedy the defect, the buyer shall not be entitled to demand a reduction in fee or the rescission of the contract, provided the subsequent performance did not fail.
  • In the case of products on which no defect could be found, we shall be entitled to pass on any inspection costs.
  • The limitation period for claims based on a product defect is one year from delivery of the product to the buyer. This shall not apply to the instances referred to in point 9 b), all of which are subject to the statutory period of limitation.

 

8. Liability, exclusion of supplementary performance and withdrawal, performance period

  • With the exception of the circumstances governed in b) below, liability above and beyond the liability for defects specified in point 7 above for compensation or reimbursement of wasted expenses in the event of breaches of duty without consideration for the legal nature of the claim being made shall be barred. This shall also apply if and insofar as breaches of duty are committed by our legal representatives or agents.
  • The exclusion of liability in the above paragraph shall not apply to claims by the buyer based on product liability law, in cases of damage to life, body or health attributable to us, in cases of grossly negligent or wilful breaches of duty, in the event that a major contractual obligation is infringed and if a guarantee was given or a party acted maliciously. In such cases, we are liable under the statutory provisions. If, however, a major contractual obligation is infringed due to simple carelessness, our liability shall be limited to compensating the typical, foreseeable loss.
  • The buyer can only withdraw because of a breach of duty not based on a product defect if the circumstance justifying the withdrawal is based on a fault attributable to us and the breach of duty is so significant that the buyer cannot be expected to adhere to the contract.
  • If a time-limit set by the buyer for performance has elapsed without result and it fails to comply with our subsequent request within a reasonable further time-limit set by us to explain why it is standing by its claim for performance or is demanding compensation instead of performance, the claim for performance shall be barred upon expiry of the reasonable time-limit associated with this request.

 

9. Limitation

  • All claims and rights of the buyer on any legal grounds whatsoever shall be limited to one year, unless our liability is based on deliberate action.
  • In derogation from the above principle, the statutory period of limitations shall apply in the following cases:
    • To claims for defects, insofar as we have fraudulently concealed the defect or have accepted a guarantee in respect of quality,
    • To claims under a right of recourse by the buyer in the context of a delivery chain in accordance with § 478 of the German Civil Code (Bürgerliches Gesetzbuch – BGB),
    • To compensation claims or claims for the reimbursement of wasted expenses arising out of damage to life, body or health,
    • To claims under product liability law.

 

10. Reservation of title

  • The delivered product shall remain our property until all outstanding bills arising out of the business relationship between us and the buyer have been settled in full. The suspension of individual outstanding bills in a current account and the striking of balances and the recognition thereof shall not affect the retention of title. In the event of a delay in payment on the part of the buyer we shall be entitled, having set a further time-limit to no effect, to take back the product and sell it at the buyer’s expense.
  • The buyer is entitled to resell the conditional product in the ordinary course of business. It is not permitted to pledge the conditional product or assign it as security. In the event of a resale of the conditional product on credit, the buyer is obliged to agree a retention of title for its part.
  • The buyer is obliged to handle the conditional product with care, and is in particular obliged to see to it that the product is identified and stored properly.
  • If the buyer assigns its claim arising out of the resale of the conditional product to us at this point, we shall accept this assignment. If the conditional buyer includes the claim in an existing current account relationship with its customer, it shall assign to us both the acknowledged balance and the causal balance up to the amount of the original current account claim. Regardless of the assignment and out right of collection, the buyer is entitled to collection as long as it duly meets its obligations towards us and is not at risk of financial collapse.
  • If the conditional product is resold together with other goods, irrespective of whether without or after being processed or combined, the above-agreed advance assignment shall only apply in the sum of the invoice value of the conditional product that is sold together with the other goods. If the buyer is in default in respect of its payment obligations, it shall on request provide the information about the assigned claims required for collection and notify the debtors of the assignment.
  • Insofar as the buyer undertakes refinancing on a factoring basis, it shall relinquish the claims to which it is entitled from this action against the factor in the sum of its outstanding balance arising out of the business relationship with us.
  • The buyer must notify us immediately of third-party compulsory enforcement measures in respect of the conditional product or the outstanding bills relinquished beforehand, handing over any documents required for an intervention. Any costs of justifiable interventions shall be met by the buyer, insofar as these cannot be obtained from third parties.
  • We undertake to release the securities due to us in accordance with the above provisions at the request of the buyer as we see fit insofar as their realisable value exceeds the outstanding bills being secured by 10.0% or more. The conditional buyer shall have a claim to release if the estimated value of the goods assigned as security is 150% of the outstanding bills being secured.

 

11. Final provisions

  • Place of performance for all claims arising out of the contractual relationship shall be Gelsenkirchen.
  • Legal domicile for all legal disputes arising out of the contractual relationship and pertaining to its origin and validity shall be Munich or the general legal domicile of the buyer, as we see fit. Statutory regulations relating to exclusive jurisdictions shall continue to apply. All disputes that arise out of or in connection with the present contract shall be ruled on conclusively and bindingly by the German national courts.
  • The contractual relationship shall be governed solely by the laws of the Federal Republic of Germany, to the exclusion of all international and supranational legal systems, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
  • Additional agreements to this agreement may not be made. Just like amendments to this provision, amendments or additions must be made in writing to be legally valid.

 

12. Note on data protection

We would point out that the personal data of our contracting partners are only processed and passed on in the performance of the contractual relationship by means of electronic data processing in accordance with the provisions of the Federal Data Protection Act. In this connection, specific data (name, address, billing information and late payments of the buyer) may be sent to credit reference agencies.

gym80 International GmbH                                                                      as at: 10/2015

 

 

 

 

General Purchasing Conditions

1. Validity of the Conditions

  • These general purchasing conditions are valid for orders of goods, services and work performance and their administration. They apply exclusively to the business which we do with companies, public law entities and special funds under public law. They shall not apply in business transactions with consumers. Consumers are natural persons who conclude the legal transaction for a purpose that cannot be attributed to either their commercial or independent professional activity. They shall also apply to all future business dealings, even if not explicitly agreed at a later date.
  • When confirming our order, and at the latest on delivery, Supplier accepts these general purchasing conditions as the only binding conditions. He also waives the right to any subsequent withdrawal/revocation. Any references by Supplier to his terms of trade are hereby refuted. Such terms of trade are not binding on us even if we have not expressly refuted them in each case. Even if we accept the goods without expressly refuting the conditions, this cannot be construed as our recognition of any deviating terms of trade of Supplier. Any deviating conditions of Supplier shall apply only if we have expressly confirmed them in writing.
  • With the introduction of these purchasing conditions, all previous purchasing conditions shall become invalid. We reserve the right to change these purchasing conditions at any time, as and when this becomes necessary and provided it is not unreasonable for the contractual partner to accept the change. We will inform the contractual partner of any changes in writing or electronically, unless this does not involve unreasonable expense. The contractual partner shall be entitled to refute the changes within 14 days; otherwise the changes will be taken as accepted.

 

2. Orders, Offers

  • Our orders and any changes or additions to the orders must be in writing or in text format for them to be binding. If, within two weeks of our sending our order, Supplier does not confirm it without any changes, in writing or in textual form, we shall be entitled to revoke our order at no cost.
  • The drawing up of offers is free of charge and without obligation on our part.

 

3. Prices, Invoices, Payments, Right of Retention

  • Prices are fixed prices and include freight and packaging costs unless expressly agreed to the contrary.
  • Invoices should be sent to us by separate post and must contain our order number and all details required for us to reclaim sales tax (VAT). Payment is due 60 days after receipt of goods and receipt of the invoice. The parties hereby agree on a 3% discount for payment within 30 days. The time when payment is made shall be the day on which we have affected performance. Interest for default shall be 5% above the base rate in line with Clause 288 Para. 1 Civil Code (BGB). We are entitled to demonstrate that the default damage has been less than that demanded by Supplier.
  • Payments, even if without any explicit provisos, do not imply any acceptance of the delivery or service as being in conformity with the contract. In the case of faulty or incomplete deliveries or services we shall, irrespective of our other rights, be entitled to withhold any payments in respect of other demands from the business relationship to a reasonable extent until the contract is satisfactorily fulfilled.
  • Any assignment of Supplier demands against us to a third party is only effective if we have given our prior consent in writing.

 

4. Delivery Date, Default, Scope of Performance, Compliance with Legal Requirements, Customs

  • The agreed delivery dates and deadlines for deliveries and services are binding. If Supplier expects a delay, or in the case of delays, he must inform us immediately in writing. Unless otherwise agreed in writing, the delivery deadline shall begin on the day of the order. The delivery date or deadline shall be considered kept when the goods enter our factory, unless otherwise agreed in writing.
  • Any extra costs caused by a delayed delivery, in particular any cover transaction (hedging transaction) necessary as a result, or other damages, shall be for the account of Supplier. After a further reasonable deadline set by us has passed without result, we shall be entitled, without any further warning, to refuse to accept the goods, to withdraw from the contract and to claim damages for non-fulfilment. We shall even be entitled to withdraw if supplier is not responsible for the delay: This does not apply if the delay is due to force majeure, labour disputes, riots, measures by local authorities and other unforeseeable, unavoidable serious events.
  • Deliveries and services must comply with all legal requirements, in particular those referring to safety and protection of the environment, including the regulations governing hazardous materials, the law governing medical products (MPG) and the medical products regulations (MedizinprodukteVO) and the safety recommendations of German specialist associations such as VDE, VDI, DIN.
  • For deliveries and services which come from an EU member state other than Germany, the EU VAT ID number must be given. Imported goods should be delivered with duty paid. In line with EC directive 1207 / 2001, Supplier undertakes to make any supplier declarations required at his own cost, to allow any inspections by the customs, and to provide any official confirmations.

 

5. Transfer of Risk, Obligation to Inspect and Complain

  • The risk of accidental destruction and accidental deterioration of the goods transfers to us only on handover of the goods at the point of destination.
  • We will inspect the goods for any obvious defects. We shall complain about any hidden defects as soon as they are ascertained in the course of due and proper business operations. The complaint is considered to have been sent in time by letter, fax, email or telephone within a period of five days of the discovery of the fault.
  • If we send the defective goods back, we shall be entitled to reverse Supplier’s credit (re-debit Supplier) to the tune of the invoiced goods plus a flat rate for expenses of 2.5% of the price of the faulty goods. We reserve the right to demonstrate that we have incurred higher costs. Supplier must demonstrate and prove that we have incurred lower or no expense.

 

6. Warranty for Material Defects, Defects of Title, Product Liability, Statute of Limitations

  • Supplier shall obtain the goods for us free of material defects and defects of title. He guarantees that the deliveries and services correspond to the contractually agreed characteristics and standards and are suitable for the purpose foreseen by the contract.
  • Faulty deliveries must be replaced immediately by fault-free deliveries; faulty services must be done again fault-free. It shall only be possible to re-work or improve faulty supplies or services with our consent. Any re-work by Supplier shall be considered as failed even after the first unsuccessful attempt. During the time that the object of the delivery or service is not in our possession, Supplier shall bear the risk.
  • If a defect has not been rectified even within a suitable extended deadline we can, at our discretion, withdraw from the contract or reduce the payment and can also claim damages in each case.
  • In urgent cases, in particular to prevent unusually high damages, to correct minor defects, or in the case of default by Supplier in respect of the correction of the defect, we shall be entitled, after we have informed him, and after a reasonable short deadline extension in keeping with the particular situation has elapsed, to correct the fault and any damages resulting therefrom ourselves, or to have the fault and damages corrected by a third party, at Supplier’s cost. The same shall apply in the case of a late delivery or service if we have to rectify a fault immediately to prevent our own goods from being delivered late.
  • Supplier confirms that he has a valid product liability insurance policy, including an employer’s liability insurance policy, and that these are covered by a suitable sum. Supplier hereby indemnifies us against all claims of third parties, irrespective of the legal basis for them, on account of a material defect or defect of title, or any other fault in a product delivered by him, and shall reimburse us with the necessary costs of the related legal case or defence. This indemnity obligation is only applicable to the extent that Supplier would be liable himself in respect of the damaged third party or the party potentially damaged.
  • Our claims in respect to defects shall be subject to statutory periods of limitation. They shall begin with the timely announcement of the defect.
  • Supplier assigns to us, as of now, all claims subject to receipt of the money (on condition of payment/on account of performance) which he is entitled to against his supplier arising from and in connection with the delivery of defective goods or those goods which lack promised or guaranteed characteristics. The necessary documentation to press through our claims shall be made available to us.

 

7. Retention of title

  • We do not recognise any extended, assigned or subsequent reservation of title of Supplier. The same thing shall apply to all other forms of reservation of title such as current account reservation and group reservation of title. We hereby recognise a simple reservation of title by Supplier on condition that the ownership of the goods transfers to us on payment and that we shall be empowered to re-sell and pass on the goods as part of a correct business transaction.
  • Clause 7. a) we do not accept any alternative sales and conditions of supply of Supplier. They shall not be part of this agreement; we expressly refute them now.
  • Supplier can only demand return of the goods on the basis of reservation of title if prior to this he has declared his effective withdrawal from the contract.

 

8. Takeover of Debt, Assignment

Without our prior written approval Supplier shall not be entitled to transfer the execution of his contractual obligations, in whole or in part, to a third party, nor to assign existing claims against us in whole or in part to a third person.

 

9. Non-Disclosure

Supplier undertakes to treat all commercial and technical details which are not generally known and which he becomes aware of during the business relationship with the utmost confidentiality and not to disclose them to a third party. We must give our written consent to any production for a third party, any showing to the public of any products made especially for us, in particular in accordance with our plans or drawings or any other special requirements, or any publications referring to any orders and services and any references to the order made to any third parties.

 

10. Obligation to comply with the Minimum Wage Act (MiLoG)

  • Supplier undertakes to comply with all statutory provisions, in particular the Minimum Wage Act (MiLoG) as amended from time to time.
  • Supplier releases us from all claims in the context of Clause 13 MiLoG (liability as guarantor). This also applies to any necessary costs gym80 International GmbH incurs due to the assertion of claims on the part of employees or third parties (social insurance agencies).
  • Supplier undertakes in turn to ensure that subcontractors contracted by him as well as hire companies likewise undertake to comply with MiLoG and place under obligation on their part any other subcontractors or hire companies they might use.
  • Supplier is not entitled to contract a subcontractor or hire company with the fulfilment of the contractual obligations without the prior written consent of gym80 International GmbH. Consent is refused, however, only if valid reasons exist.
  • In the event the Supplier infringes upon the MiLoG and/or the obligations described in Item 10 letters c) and d), we shall be entitled to retain the agreed payment fully or partially. Given the same conditions, we are entitled to terminate the contractual relationship without notice and with immediate effect, or declare the cancellation of the Contract.

 

11. Final provisions

  • Place of performance for all claims arising out of the contractual relationship shall be Gelsenkirchen.
  • The place of jurisdiction for all disputes arising from the contractual relationship and from its inception and its effectiveness shall be Gelsenkirchen or, at our discretion, the general place of jurisdiction of Buyer. Statutory regulations relating to exclusive jurisdictions shall continue to apply. All disputes that arise out of or in connection with the present contract shall be ruled on conclusively and bindingly by the German national courts.
  • The contractual relationship shall be governed solely by the laws of the Federal Republic of Germany, to the exclusion of all international and supranational legal systems, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
  • Additional agreements to this agreement may not be made. Just like amendments to this provision, amendments or additions must be made in writing to be legally valid.
  • In case of doubt, the German version of these General Terms and Conditions (Allgemeine Zahlungs- und Lieferbedingungen) shall prevail and be binding regarding the rights and obligations of the parties as well as for all questions of interpretation.

 

12. Note on data protection

We would point out that any personal data of our contractual partners have been processed and passed on by means of electronic data processing in line with regulations contained in the Federal Data Protection Act only for purposes of implementing this agreement.

gym80 International GmbH                                                as at: 06/2015

 

 

 

 

Maintenance Contract

aktivSERVICE-Agreement
An Agreement for a Licence, Software Hotline, Remote Maintenance, Service and Support

1. Grant of Software Licence

  • Buyer is hereby granted a standard non-transferable licence, to the extent of his purchase order, to use software in the gym80-Software training control program (“software”). This licence does not in any way give Buyer the right to access the software source code, nor to use the source code in any way. Buyer is only entitled to use the software together with the products purchased under 1a). Any other use of the software is inadmissible.
  • The software licence is non-transferable, unless the products pursuant to 1a) are sold to a third party as part of a normal business transaction. The licences shall become invalid in respect of third parties if the products are lost. Transfer of the legal rights to use the software is only effective if the person acquiring the software accepts these licence conditions. The same applies to any instance where the products are legally re-sold.
  • We are the sole proprietors of all software rights, trademarks, copyrights, patents and intellectual property rights in respect of the products and the software. Buyer shall neither attack (challenge) nor infringe these software rights nor acquire his own rights, except the rights accorded by this agreement. The re-sale, transfer, publication and any grant of ownership in respect of the software and any copies and documentation in respect of the software contrary to this agreement is forbidden. Buyer must not amend or decompile the software in any way. He may however, make and keep backup copies of the software. 

 

2. Validity and Effective Date of the Service Agreement

  • When he places the order, Buyer effectively concludes the aktivService agreement inasmuch as the order (also) includes the supply of gym80-Software components (“gym80-Software”). The agreement becomes effective when we confirm acceptance of the order in textual form within four weeks of receipt of the order, or if we carry out the delivery in whole or in part. The deadline is considered kept if the declaration of acceptance is sent within the time limit(s) given above.
  • These conditions shall be taken as accepted when Buyer accepts our delivery or service at the latest.
  • We hereby refute the terms and conditions of Buyer. We shall not be bound by them even if we do not always explicitly refute them. Any conditions of Buyer which deviate from ours shall only be valid if we have expressly confirmed them in writing. This also applies to any agreements which are at variance with ours.
  • In addition to these contractual conditions Buyer also accepts our General Terms and Conditions (“General Payment and Delivery Terms”) – Allgemeine Zahlungs- und Lieferbedingungen - which can be viewed on our website www.gym80.de under the link “AGB” and stored and printed out as a PDF file. 

 

3. Subject of the Agreement and Scope of Performance

  • The subject matter of this agreement comprises the hotline, remote maintenance, service, update and support (“support services”) for the gym80-Software installed at Buyer’s premises. We refer here to the general information on the gym80- Software.
  • We provide support services only for the latest released and supplied version of the software and for the previous version for up to one year after the current version has appeared.
  • We perform the following services for Buyer based on this agreement and on the individual scope of the order:
    • training in the use of the software at the place of Buyer,
    • analysis and correction of faults (see clause 4.),
    • supply of updates (clause 5.),
    • quotes for new versions (clause 6.),
    • a hotline service (clause 7.). 
  • We perform out these support services on working days (Monday to Saturday) from 10 am to 10 pm CET except on German bank or public holidays ("ervice time").
  • Support services (in particular the supply of updates and troubleshooting) will be carried out by long-distance data transmission (tele-maintenance). Buyer shall provide the technical means required to accept the data at his place of work, in particular an internet connection, at his own cost. Any performances carried out at Buyer’s premises on his system - performances which he himself has requested - shall be invoiced based on time spent and costs incurred (including any travelling and overnight expenses) in accordance with gym80’s currently-valid price list (Clause 10).
  • Support services can only be requested by the member of staff at Buyer who is in overall charge of the system, or from his deputy (Clause 8 Para. 2).
  • Support services do not include:
    • a. individual changes and extensions to the software,
    • b. support services for third party software,
    • c. installation and implementation of the software on Buyer’s hardware environment,
    • d. replacing hardware or the operating system
    • e. further instructions to, and teaching of, staff which go beyond the initial training.

We shall perform this work only on the basis of a separate agreement and separate payment.

  • Buyer shall receive a handover protocol containing a list of the hardware configuration and the configuration of the network and the respective network connections valid at the time when the equipment is dispatched. These certificates shall serve as the basis for establishing the source of any faults caused by any third parties. We cannot carry out any support services on software which is not used under these (designated) conditions or which has been changed by programming work by Buyer or by a third party. The same applies to faults which have occurred as a result of incorrect or improper handling by Buyer, e.g. interventions in the PC software and/or the network or as a result of the actions of a third party or other external influences. We cannot guarantee to correct or recover faulty data.
  • We shall be entitled to commission third parties to provide the support services. At the moment we are working with the company aktivKONZEPTE AG. 

 

4. Analysis and Correction of Faults

  • We will correct the faults notified to us by Buyer within a suitable period of time (see Para. 3, Para. 4) and shall make every effort to find the speediest, most appropriate remedy. In some cases, correction of the fault may take time if the fault cannot be reconstructed and if initially - together with Buyer as necessary, who in this case has a duty to co-operate – it requires further analysis in order to localize it. Buyer must provide us with the support needed to correct the fault.
  • Buyer shall notify faults via the gym80-Software hotline, which is provided and operated by aktivKONZEPTE, by calling +49 6897 766682. The faults are recorded via the gym80-Software hotline at a helpdesk. As soon as the fault has been repaired, Buyer receives an email with the relevant information.
  • Inasmuch as he can reasonably be expected to do so, Buyer shall accept the new program release levels (updates) offered or left to him and which have been necessary to correct the fault.
  • If, when working on the fault and as a result of the faults analysis, it transpires that the fault notified by Buyer does not exist or has arisen by virtue of circumstances not caused by the gym80-Software, then we shall be entitled to charge in accordance with our current price list for the time and expense incurred in working on the fault and the faults analysis. We shall be obliged to demonstrate that the fault did not exist or was not our fault. 

 

5. Updates

  • We shall make available to Buyer new program release levels for purposes of correcting faults and for adapting to any changes, e.g. to the system environment or the operating system (“update”). Buyer shall receive updates at no cost and which have been installed fully automatically. Only for new versions (“upgrades”) – which Buyer can decide to purchase or not – will there be any costs (Clause 5). The new program updates may also contain slight functional improvements or extensions to the functions. New performance components and program modules with new features (“functions”) are not included in this.
  • Buyer shall receive gym80-Software updates via tele-maintenance. Buyer shall receive the program updates in absolute code together with the corresponding details of the changes which will be made when he re-starts the program. 


 

6. New Versions (Upgrades)

  • We shall inform Buyer of new software versions with new features (upgrades).
  • Upgrades must be paid for and require a separate agreement. Upgrades shall appear at intervals of about 18 months. 

 

7. Hotline-Service

  • Buyer shall get help with faults and advice in using the software via the telephone. These assistance and consultation services are performed by qualified experts and are available during the normal answering times.
  • The telephone hotline is manned during service times (point 2 e). 

 

8. Obligation to Co-operate and Other Obligations of Buyer

  • Buyer shall co-operate, to the extent necessary, in ensuring that the support services are adequately performed. He shall make available to us, or to our co-operation partner, all information and data required for carrying out our performances.
  • On finalisation of the agreement Buyer shall nominate in writing a person who has overall responsibility for the system, and a deputy. Only those people can be nominated for these positions who are qualified enough to do the job and who have been trained in handling the software which is to be supported. Any change in the person in charge of the system or his deputy must be notified immediately in writing or in textual form. In particular, Buyer shall make sure that when a fault is reported, the person in charge of the system or his deputy is available to answer any questions and to listen to any suggestions as to how the fault can be corrected.
  • Buyer undertakes to leave the installed network in operation unchanged and to make sure that all training machines are physically linked to the network. Within the framework of tele-maintenance, Buyer shall enable us to access his data via the internet so that we can fulfil our contractual obligations.
  • Buyer guarantees that the system is being operated under normal conditions and that preventive system maintenance is being regularly carried out. He shall ensure the correct operation of the network infrastructure, server and/or PC hardware and the associated operating software which he makes available for us to use, so as to eliminate any possible adverse effects on the gym80-Software.
  • Buyer must make sure that the computer and keypad of the gym80-Software (client terminals, e.g. service point, free exercise point etc.) cannot be accessed by the end user. The end user should only have access to the touchscreen and card reader. This is to prevent unauthorized persons from causing faults to the gym80-Software or the corresponding operating system software and hardware which could have an adverse effect on the operation of the gym80-Software and therefore of the training.
  • Buyer undertakes to save data on a regular and careful basis. He guarantees that the operating system will always be able to function. Client also undertakes to further save data regular (daily) on a local hard disk and (at least once a week) on external media so as to prevent data loss. These external media shall be protected by means of suitable measures against access by third parties.
  • If he wishes, Buyer can also avail himself, against payment of a fee, of the service of the “gym80-Software BACKUP” to save his data from the gym80-Software locally and on an external server. For details of the scope of performance of the gym80-Software BACKUP please refer to the “gym80-Software BACKUP agreement”.
  • Buyer shall take the required measures, inasmuch as is reasonable, to ascertain, restrict, and document faults and errors. He undertakes to inspect new versions immediately according to § 377 Commercial Code (HGB) and to report any faults. Buyer shall make available to us any system protocols and memory dumps, any affected input and output data, interim and final test results and any other documentation which can be useful for locating faults. Client shall permit the use of rooms, hardware, software and telecommunications equipment, inasmuch as these are required for performing the support services.
  • We are not responsible if the performance of the support services is delayed because Buyer has failed to fulfil his obligations to co-operate or has failed to do so in full measure. We reserve the right to charge any extra costs incurred as a result in accordance with our current price list.
  • Buyer confirms that he has received and has taken account of the general information on the gym80-Software (Allgemeine Informationen zur gym80-Software). 

 

9. Right to Use

  • We hereby grant Buyer the right to use the work results (deliverables) gained from the support services and the new program updates according to the conditions laid down in the software licence. Any further rights shall be excluded.
  • After a new program update has been installed the rights of use of the previous program status shall lapse. Buyer shall be entitled, however, to keep the immediately previous software status beyond the end of its productive life for documentation and for emergency situations. We hereby grant him the necessary rights. 

 

10. Payment and Payment Terms

  • We shall receive the agreed fee for the support services annually in advance on the basis of the quote which we have supplied. Any overlaps with any warranty claims with respect to the software shall be incorporated into the calculation of the support services fee for the duration of the warranty period, since as a rule Clients, during this time, increasingly make use of other support services to do with general questions on how the system works and how to operate it.
  • Services outside the normal service times, services at the place of Buyer or at another location (“field work”) and other services which must be paid for separately shall, following a written request from Buyer and unless otherwise stipulated in this agreement or in another agreement between the parties, be invoiced at currently-valid gym80 prices based on time and expenses incurred.
  • The service staff involved shall record the time spent on field work on a time sheet. This shall be signed by Buyer on completion of the work.
  • Travelling expenses, incidental expenses and, as required, overnight costs shall be invoiced separately. Journeys by car shall be invoiced at 70c per kilometre; journeys by public transport and hotel costs (in a medium-priced hotel for the area concerned) shall be invoiced at cost (with supporting documentary evidence) and incidental/subsistence allowances according to the current maximum permissible rates for tax purposes. Travelling time shall be invoiced at 50 % of the hourly rate. Rates are based on the travelling time from the seat of the company carrying out the performance.
  • All amounts are net plus VAT at the current rate. Payment is due net within 14 days of receipt of invoice.
  • The fees cannot be changed unilaterally for the first 12 months of the agreement. After that, we are entitled, using equitable discretion, to re-set the rates after giving a period of notice of 3 months for the following 12 months to Buyer in writing (§ 315 Commercial Code (BGB). If the increase is more than 10%, Buyer can terminate this agreement giving a period of notice of two weeks following receipt of the notification, taken to the point in time of the increase. The same shall apply if the prices increase by more than 30% within a period of five years. Otherwise the contractual relationship shall continue at the new fee levels.
  • Buyer can only set off a payment against undisputed or legally-binding claims. He shall only be able to claim any rights of retention in respect of an undisputed or legally-binding counterclaim arising from the relevant contractual relationship. 

 

11. Warranty, Liability, Statute of Limitations

  • Any warranty for material defects or defects of title, liability and any limitation of claims (time-barring) shall be conclusively governed by our general terms of trade (General Payment and Delivery Terms), unless otherwise agreed below.
  • We shall be liable for compensation in respect of, or shall reimburse, any futile expenses for whatever legal reason (e.g. violation of our obligations, unlawful acts) only to the following extent: in full, in the case of deliberate acts (acts of malice), gross negligence, and if we grant a warranty with regard to the agreed finished quality of a product. The legal liability in respect of injury to persons and for claims arising from the law on product liability shall remain binding. We reserve the right to cite contributory negligence. In the case of data loss we are liable only for the damage which would have been caused if Buyer had saved his data correctly.
  • Any claims of Buyer shall lapse (become statute-barred) within one year of supplying each new program status. The statutory period of limitations shall apply in the case of damage to persons (including infringing a person’s freedom), malice, and gross negligence. 

 

12. Non-Disclosure and Data Protection

  • Buyer undertakes to inform the software end users that all processed data may be viewed by a third party for purposes of tele- maintenance.
  • Buyer must ensure that his staff is given the guidelines on data protection. We for our part guarantee that all data will be treated with the utmost confidentiality and that client data will be collected, stored, processed and passed on to a third party as required only to the extent as is required for the implementation of this agreement and in line with the regulations governing data protection.
  • Buyer undertakes to inform the software end users that his data may be viewed by a third party for purposes of tele- maintenance. We guarantee that we and any mandated third parties will comply fully with all statutory regulations governing data protection. For this purpose a specimen declaration (“Declaration of Consent to Data Protection (Einwilligungserklärung zum Datenschutz)) which can be viewed on our website www.gym80.de under the link AGB and which can be stored and printed out as a PDF file, must be observed and signed by the end user. We cannot accept any liability whatsoever in respect of how the specimen declaration is used. 

 

13. Length of the Agreement and Termination

  • The software support shall commence on the first day of the month following, commissioning (first configuration) of the gym80-Software.
  • The agreement shall last for 24 months from the date of delivery. The agreement shall extend automatically for a further 12 months unless it is terminated giving a period of notice of three months to the end of the agreement.
  • The right to terminate for an important reason shall remain unaffected by the above. For us, an important reason is given in particular, if Buyer defaults with his payments, or if he fails to comply with the conditions of use, and if he fails to correct this immediately following a written reminder/warning – if there is a danger of default even without a reminder. Termination must be in writing, by letter or fax. 

 

14. Concluding Provisions

  • The place of fulfilment for all claims arising from the contractual relationship shall be Gelsenkirchen.
  • The place of jurisdiction for all disputes arising from the contractual relationship and regarding its creation and effectiveness shall be Munich or, if we so choose, the general place of jurisdiction of Buyer. Any statutory regulations governing exclusive powers/responsibilities shall remain unaffected by this. All disputes which arise from, or in connection with, the present agreement shall be finally and bindingly pronounced on by German national courts.
  • The contractual relationship shall be exclusively subject to the law of the Federal Republic of Germany to the exclusion of all international and supranational legal systems, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
  • The parties have entered into no agreements outside this agreement. Any amendments or supplements must be made in writing for them to become effective in law. If the parties wish to waive this requirement, they must also do so in writing.
  • Should one or more of the provisions in this agreement be unworkable or ineffective, then the parties shall replace it/them by a provision/provisions which comes/come as close as possible to the commercial/financial intention of the ineffective ruling/rulings. All remaining provisions or agreements shall remain binding, however. 

 

15. Statement on Data Protection

We would point out that the personal data of our contractual partners shall be processed and forwarded only for purposes of carrying out this agreement, via electronic data processing in line with the Federal Data Protection Act. In this respect, certain data (name, address, invoice data and late payments of Buyer) may be relayed to credit reporting agencies. 

gym80 International GmbH release: 08/2011

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