GENERAL TERMS AND CONDITIONS OF TRADE
BENCHMARK SALES VIA THE ONLINE SHOP
OF FEV CONSULTING GmbH
Validity and protection clause
For the business relationship between FEV CONSULTING GmbH as the provider of the online shop (hereafter “FEV”) and the customer (hereafter the “Customer”) the following general terms and conditions of trade (hereafter “GTC”) apply exclusively in the current version at the time of ordering.
Conflicting terms or such terms of the Customer as differ from these GTC do not apply unless FEV has explicitly approved their validity in writing. They also do not apply if FEV does not object separately in the knowledge of conflicting terms or of such terms of the Customer as differ from these GTC or if FEV provides the delivery/service to the Customer unconditionally.
These GTC do not apply to consumers in accordance with § 13 BGB (German civil code).
The Customer can choose from the range of FEV benchmark products and place them in a so-called cart by clicking the “Add to cart” button. By clicking the “Order with an obligation to pay” button the Customer places a binding request to purchase the products in the cart (order). The Customer can modify and view the data at any time before submitting the order. Nonetheless the request can be submitted by the Customer and transmitted only if the same (i) accepts these GTC by clicking on the “I agree to the terms of service” button and thus including them in the request and (ii) has clicked on the “B2B transaction” button to confirm that the Customer is not a consumer.
FEV confirms receipt of the order from the Customer by sending a confirmation e-mail in which the order from the Customer is specified again. The Customer can print the confirmation e-mail by using the “Print” function. The confirmation e-mail does not constitute acceptance of the contractual offer by FEV; it merely documents the fact that the order from the customer has been received by FEV. The contract is concluded only with the submission of a declaration of acceptance by FEV which will be sent in a separate e-mail (order confirmation).
Scope of service
All benchmark products are copyright and trademark-protected intellectual property of FEV.
FEV provides the customer not with ownership of the selected benchmark products to the but rather with a non-exclusive, non-transferrable and non-sublicensable usage right (hereafter “Usage Right”). No additional services e.g. such as further clarifications, workshops etc. about the benchmark products are due. If the Customer wants such services then a separate agreement with FEV is required to this end.
The Customer may use benchmark products for the purposes of the same including for commercial purposes. Even in the case of permitted use the content must not be changed and copyright notices or other references to rights and/or property of third parties must not be removed. The Customer is permitted to produce copies for own use, to store them on reader terminal devices and to use them as intended on these devices. Further use and especially disclosure, editing, copying or reproduction, distribution, publication or public provision of the benchmark products either in full or in part whether in digital form, by data transmission or in analogue form is not permitted for the Customer and may be subject to prosecution.
The Customer acquires the Usage Right only on full payment of the purchase price.
FEV may supply the benchmark products with a watermark which may also be visible on each individual page of the printout if the benchmark product is printed.
The benchmark products are sent by FEV in a standard file format. Delivery is made exclusively electronically by e-mail. If the files are not already attached to the e-mail then the Customer receives a download link plus password from which the files can be downloaded to the terminal device of the Customer within 30 days. The Customer must ensure that the receiving devices of the same allow barrier-free receipt and are set up so that receiver settings such as file size limit do not impede, delay or prevent receipt.
Delivery takes place approx. 5 working days (at the registered office of FEV) after receipt of the full purchase price.
Claims for defects
The Customer acquires the benchmark product “as is”. The Customer recognises that the benchmark product is for comparative purposes only and does not represent a detailed technical analysis of the object being examined. FEV provides no guarantee that the benchmark product displays a level of detail sufficient to allow reconstruction of the object being examined or parts thereof.
FEV is not liable for the functionality or defect-free nature of the products manufactured by the Customer or third parties with or on the basis of the services of FEV and in particular for their economic and technical usability unless FEV was made aware of the use and usage conditions before accepting the order. FEV is not liable if the Customer has amended or processed the service.
Information about and references to DIN or ISO standards, directives or other domestic or foreign quality standards in the course of the service from FEV as well as provided analyses or descriptions of physical properties of services from FEV do not constitute guarantees in accordance with § 276 par. 1 clause 1 BGB unless explicitly agreed otherwise.
If a service from FEV includes research and/or development work then FEV aims to achieve the objective desired by the Customer. Yet FEV makes no further commitment in particular to the achievement of the objective pursued by the Customer. Anything otherwise applies only if it has been explicitly agreed in advance.
Customer shall only be entitled to damage compensation or compensation for wasted expenditure as a result of defects in accordance with figure 6 and otherwise excluded.
FEV is liable only for gross negligence and intent as well as for breach of such duties as must be fulfilled in order to make proper execution of the contract possible at all and upon compliance with which the Customer may regularly depend (“cardinal duties”).
In the case of breach of a cardinal duty as a result of minor negligence the liability of FEV is limited to damages that are typical for and foreseeable on conclusion of the contract.
If the breach of a cardinal duty as a result of minor negligence by FEV constitutes a breach of the duty of defect-free delivery then it is assumed that the foreseeable damage typical for the contract is no greater than the total value of the consideration as the maximum sum of the value decrease caused by the defect. The liability of FEV is therefore limited to the total value of the consideration for the service concerned.
FEV is not liable in the case of a breach of contractual duties that are not cardinal duties as a result of minor negligence.
If liability of FEV is limited or excluded then this also applies to liability of the employees, representatives or agents of FEV.
The aforementioned liability limitations/exclusions do not apply in the case of intent, fraudulent concealment of defects or provisions of a guarantee, liability on the basis of product liability law and to physical injury (injury to life, body or health) or to other mandatory liability. This is associated with no change in the burden of proof to the detriment of the Customer.
The Customer cannot withdraw from or terminate the contract as a result of a breach of duty that does not constitute a defect if FEV is responsible for the breach of duty. A free right of termination by the Customer is excluded in respect of such breaches of duty as do not constitute a defect. Otherwise the statutory requirements and legal consequences apply.
In deviation from § 438 par. 1 no. 3 BGB the general limitation period for claims arising from defects of material and title amounts to one year from delivery. This also applies for contractual or non-contractual damage compensation claims of the Customer which are based upon a defect unless application of the regular statutory limitation in accordance with §§ 195, 199 BGB would result in a shorter limitation in the individual case. Damage compensation claims of the Customer for intent, fraud or gross negligence and/or for injury to life, body or health as well as in accordance with product liability law expire only after the statutory limitation periods. The statutory limitation periods also apply if FEV has fraudulently concealed a defect or provided a quality guarantee (§§ 444, 639 BGB).
FEV is not liable if the Customer has culpably contributed to causing the damage.
The Customer recognises that the protected object contains non-public information which FEV has obtained on the basis of its benchmark examinations and that FEV has a strong interest in confidentiality of the benchmark product as disclosure of the benchmark product could significantly impair the business model of FEV which offers the protected object to multiple potential buyers. The Customer is bound by confidentiality of the benchmark product. The Customer shall protect the benchmark product with the same care as its own confidential and/or proprietary information and with no less than a reasonable level of care.
The Customer shall maintain the confidentiality of all information communicated to the same in connection with the ordering of benchmark products and marked or otherwise identifiable as confidential for example on the basis of its content and this applies in particular to business and trade secrets. It does not apply if information: (i) is or becomes public knowledge without this resulting from a breach of this confidentiality provision; (ii) is already in the possession of the Customer at the time of its disclosure and the Customer has an obligation to anyone to maintain the confidentiality of such information; (iii) becomes known to the Customer from a source other than FEV after its disclosure and/or (iv) is generated independently by the Customer. The Customer must impose corresponding confidentiality obligations on employees of the same who come into contact with confidential information from FEV.
Applicable law, place of jurisdiction
The contractual relationship between FEV and the Customer including these GTC is subject to the law of the Federal Republic of Germany to the exclusion of national law on conflict of laws and the United Nations convention on the international sale of goods (CISG).
Unless a different exclusive jurisdiction exists Aachen is agreed as the place of jurisdiction for all disputes arising directly or indirectly from or in connection with the contractual relationship between the Customer and FEV. FEV is nonetheless also entitled to make a claim against the Customer in another statutory place of jurisdiction.
The contract including these GTC is exclusively applicable for the legal relationship between the Customer and FEV. This fully reflects all agreements between FEV and the Customer at the time of conclusion of the contract.
Amendments and additions to this agreement must be made in text form in order to be valid. This applies accordingly for this form requirement. The same applies for agreements that are ancillary or additional to the contract.
In the case of invalidity of individual provisions of the contract the other provisions shall remain legally binding. FEV and the Customer undertake to replace of the invalid clause with a valid clause that is as close as possible to the economic purpose of the invalid provision whilst appropriately protecting the interests of both parties.