Delivery conditions and General Terms and Conditions / Terms of Service

GENERAL SCOPE OF THE AGREEMENT

The goods and services of SCHMITT Business Consulting, Ltd., are entirely and exclusively subject to the General Terms and Conditions / Terms of Service and Licensing Regulations of SCHMITT Business Consulting, Ltd. These are made available at www.trainplan.com. Conditions of the contracting party that are contrary to or divergent from the General Terms and Conditions / Terms of Service and Licensing Regulations of SCHMITT Business Consulting, Ltd., are explicitly excluded. The contract party's transmission of rights and liabilities from the contract requires the written consent of SCHMITT Business Consulting, Ltd.

SUBJECT OF THE CONTRACT

• The subject of the contract encompasses the entire content of files, Internet services, CD-ROMs or other media, as well as the goods and services related to these contents, including computer information and software of SCHMITT Business Consulting, Ltd., or its subcontractors, digitized images, inventory photographs, clip art, audio, and other artistic works and files as well as the included written documentations that were delivered based on these General Terms and Conditions / Terms of Service and Licensing Regulations.
• The term "software" furthermore encompasses all upgrades, modified versions, updates, as well as supplements of the software licensed by SCHMITT Business Consulting, Ltd.
• The term "usage" refers to accessing, installing, downloading, copying, or otherwise making use of the software's functions according to the written documentation.
• The term "permitted number of copies" refers to (1) one single-trainer license, unless this has been set forth in another valid license contract (e.g., library license, distribution and trade-partner license, company license) by SCHMITT Business Consulting, Ltd.
• The term "buyer" refers to the individual that has ordered one TRAINPLAN® copy from SCHMITT Business Consulting, Ltd. If the buyer is not the licensee, the buyer is not authorized to use TRAINPLAN® according to the General Terms and Conditions / Terms of Service and Licensing Regulations of SCHMITT Business Consulting, Ltd.
• The term "main licensee" refers to the individual of corporate entity to which the complete TRAINPLAN® documents have been licensed by SCHMITT Business Consulting, Ltd. If the main licensee orders TRAINPLAN® from SCHMITT Business Consulting, Ltd., he or she is considered to be the buyer as well.

COMPLIANCE AND LIABILITY

• SCHMITT Business Consulting, Ltd., warrants to the buyer / licensee that the aforementioned software is contained on the data carrier (disk / CD-ROM) and that the data carrier is free of defects under the stated minimum system requirements and normal operating conditions.
• In case of a defect of the object purchased, SCHMITT Business Consulting, Ltd., is entitled to choosing between remedial action (removal of defects) or replacement according to their discretion.
• For a period of ninety (90) from the date of purchase, SCHMITT Business Consulting, Ltd., warrants to the natural or legal person originally obtaining a software license according to the conditions of the contract that the software is generally capable of performing the functions described in the written documentation, provided that the software is employed according to the recommended system requirements. Minor deviations from descriptions in the documentation do not constitute a warranty claim.
• The warranty is forfeited if the object purchased is used other than directed or outside its regular operating parameters. Natural wear and tear is excluded from the warranty.
• Obvious defects identifiable from a visual inspection have to be brought to the attention of the seller immediately after delivery and acceptance through the buyer. Similarly, it is to be brought to the attention of the seller without delay if the wrong article has been delivered or if the order has not been placed by the buyer. If the buyer neglects to notify the seller of this, the goods are considered "ordered".
• If the inspection of a warranty claim leads to the result that no warranty claim is at hand, SCHMITT Business Consulting, Ltd., is entitled to charge inspection costs of up to EUR 100,- excluding shipping / handling and VAT.
• Further claims of the buyer - no matter for which legal reason - are excluded. SCHMITT Business Consulting, Ltd., does not accept responsibility for defects that have not originated directly in the item ordered; in particular, SCHMITT Business Consulting, Ltd., does not assume responsibility for loss of profits or other monetary damages to the buyer. This exclusion of liability is invalid if the damage is due to intention, gross negligence or lack of an ascribed feature, breach of contractual responsibilities, delay of services, or impossibility. SCHMITT Business Consulting, Ltd., does not accept responsibility for data recovery, unless SCHMITT Business Consulting, Ltd., has incurred the loss of data with intention or gross negligence.
• SCHMITT Business Consulting, Ltd., does not grant any guarantees, assurances, regulations, or conditions, explicit or implicit, arising from a business relationship or a trading custom, or derived from legal regulations or customary law, concerning market tradability, the absence of legal defects, or the integration or suitability for certain purposes. Exempt from this are the aforementioned limited liability as well as any warranties, conditions, or assurances which cannot be excluded or restricted due to national and international laws.
• Defects of the software delivered, including the written documentation and other documents, are corrected during the 24-month warranty period, starting with the day of delivery, after the customer has notified SCHMITT Business Consulting, Ltd., accordingly. The shipping and handling costs are covered by the customer. At the discretion of SCHMITT Business Consulting, Ltd., this will be effected through removal of defects or replacement. If the defect cannot be removed within due time or if the rectification of defects or replacement shipment is to be considered as failed due to other reasons, the customer may elect to demand an abatement of the purchase price or the cancellation of the contract. A failure of the rectification of defects or replacement shipment is to be considered only if the seller has had reasonable opportunity to rectification of defects or replacement shipment without being successful, if it is impossible, if it is refused or unreasonably delayed by the seller, if reasonable doubts exist concerning the chances of success, or if it is unreasonable for any other cause. The right of correcting defects after setting a time limit, and charging the costs to the seller (according to § 633 II German BGB) is excluded.
• Furthermore, the seller is only liable for intention and gross negligence caused by him or his legal proxies or executives, unless a responsibility has been breached that is of substantial significance for the fulfillment of the contract purposes (cardinal obligation). Upon breach of the cardinal obligation, the limited liability for initial inability is to be used accordingly.
• SCHMITT Business Consulting, Ltd., does not assume responsibility for damages, claims, or costs of any kind, or follow-up, long-term, direct or indirect, accidental penalty damages, particular or other damages as well as claims or reclamations derived from loss of profit, even if a representative of SCHMITT Business Consulting, Ltd., was informed of the possibility of such losses, damages, claims, or costs, or claims of third parties. The aforementioned restrictions and exclusions only apply as far as permitted by applicable compulsory regulations of national law. The entire liability of SCHMITT Business Consulting, Ltd., and its suppliers within this contract, whether due to contractual or prohibited action (including negligence), is limited to the amount that was originally paid for the software.

OFFERS AND PRICES

The offers of SCHMITT Business Consulting, Ltd., are open and non-binding. The information included in brochures, advertisements, Internet web pages or other media are non-binding and noncommittal. All prices exclude value-added / sales tax or shipping and handling fees.

PAYMENT AND DEFAULTED PAYMENT

• The purchase price is due immediately upon ordering.
• Financial services costs (banking fees for international payments, cash-on-delivery fees etc.) are generally the buyer's responsibility.
• The buyer may settle the purchase price by prepayment / advance payment or cash-on-delivery.  
• If the buyer is an existing customer of SCHMITT Business Consulting, Ltd., delivery can be made against an open invoice as long as there are no payments in arrears from the business relationship.
• If payment is defaulted, SCHMITT Business Consulting, Ltd., is entitled to charge a moratory interest of 5% (percent) over the base annual interest rate as per the German Discount Transfer Law.

CONTRACT ACCEPTANCE

The contract is created by the acceptance of the customer's order by SCHMITT Business Consulting, Ltd. The customer renounces in the receipt of an acceptance declaration (§151 Satz 1 German BGB). The customer is advised of the contract acceptance either by a confirmation from SCHMITT Business Consulting, Ltd., or with the shipment of the goods ordered at the latest.

CANCELLATION

Products of SCHMITT Business Consulting, Ltd., are exclusively delivered to merchants, legal persons of public law or to those acting as their executives. For the cancellation of the contract, the current version of the German HGB (German Trade Law) §§ 377, §387 for merchants and legal persons of public law shall be valid.

DELIVERY AND TRANSFER OF RISK

Delivery is made ex works, i.e., the business location of SCHMITT Business Consulting, Ltd., to the delivery address provided by the buyer. The responsibility of risk is transferred upon the buyer as soon as the shipment has been handed over to the company or person carrying the shipment. This also applies to partial deliveries. The means of shipment is at the discretion of the seller, unless a certain means of shipment has been arranged for in writing in advance with the person placing the order.

DELIVERY TIMES

The transfer of goods to the carrier is usually effected after verifying the method of payment. However, SCHMITT Business Consulting, Ltd., reserves the right to effect the delivery according to the projected capacity of SCHMITT Business Consulting, Ltd. This implies the reservation of unforeseeable events and obstacles, regardless of whether they occur at SCHMITT Business Consulting, Ltd., or at the manufacturer, such as, for example, acts of nature beyond control, federal measures, non-obtainment of authority clearances, industrial action of any kind, sabotage, shortage of raw materials, delay of material deliveries through no fault of SCHMITT Business Consulting, Ltd. Such events accordingly extend the date of delivery, also if they occur during an existing delay. If SCHMITT Business Consulting, Ltd., should delay a delivery by more than four weeks, the customer is entitled to cancel the contract after an appropriate extension of time (in writing), thus forfeiting all further claims. If the delivery is delayed for more than six weeks, SCHMITT Business Consulting, Ltd., is entitled to cancel the contract in whole or in part.

DATA PRIVACY / DATA SECURITY

Without the explicit consent of the buyer, the buyer's personal information is stored only for the settlement of the order and within the conditions of the business relationship. They will only be made accessible to third parties, i.e., the carrier charged with the shipment, as far as it is required for carrying out the order. All stored information will be held in the strictest of confidence and will not be made accessible to third parties.

APPLICABLE LAWS

These General Terms and Conditions / Terms of Service as well as the business relationships between SCHMITT Business Consulting, Ltd., and the buyer are governed by the laws of the Federal Republic of Germany. Other national rights as well as the "International Commercial Terms" ("Incoterms") are excluded. In the event of a discrepancy, the original German version of these General Terms and Conditions / Terms of Service and Licensing Regulations shall apply.

FULFILLMENT LOCATION / PLACE OF EXECUTION AND JUDICIAL DISTRICT

Place of execution is the main business location of SCHMITT Business Consulting, Ltd. For all present and future claims from the business connections with merchants, action is to be taken exclusively at the court responsible for SCHMITT Business Consulting, Ltd.'s area of business.

RESERVATION OF OWNERSHIP

SCHMITT Business Consulting, Ltd., reserves the ownership of the goods delivered until the good are paid in full by the buyer.

SALVATIONAL CLAUSE

Should one or more of the conditions defined in this contract become invalid in whole or in part, the validity of the remaining conditions shall not be affected. Invalid conditions shall be replaced with new formulations that are legally valid and most closely resemble the invalidated condition.
These General Terms and Conditions / Terms of Service supersede and replace all previous declarations, assurances, notifications, or advertisements concerning the software.
SCHMITT Business Consulting, Ltd.
Dachdeckerstraße 12 / Gewerbegebiet Kiesäcker
97297 Würzburg-Waldbüttelbrunn
GERMANY