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General terms and conditions of business
(Stand 01.01.2017)

1. General - Scope
All deliveries, services and offers are based exclusively on these general terms and conditions. These therefore also apply to all future business relationships, even if they are not expressly agreed again. These conditions are deemed to have been accepted at the latest upon receipt of the goods or services. We do not recognize deviating or supplementary agreements, in particular contradictory terms and conditions, unless there is the express, written consent of Kreative Engineeringkonzepte (hereinafter KRENKO). This does not apply to subsequent oral side agreements. If the customer does not agree to this, he must immediately inform KRENKO in writing. In this case, KRENKO reserves the right to withdraw offers without any claims being made. KRENKO expressly contradicts the formal reference to its own terms and conditions.

Consumers within the meaning of the terms and conditions are natural persons with whom a business relationship is entered into without any commercial or independent professional activity being attributed to them.

Entrepreneurs within the meaning of the terms and conditions are natural or legal persons or legal partnerships with whom a business relationship is entered into and who act in the exercise of a commercial or independent professional activity.
Customers within the meaning of the terms and conditions are both consumers and entrepreneurs.

2. Conclusion of contract
All offers from KRENKO are subject to change. We reserve the right to make technical changes as well as changes in shape, color and/or weight within reason. Information contained in brochures, advertisements, analyses, documentation and similar publications only represent descriptions and do not contain any guarantees of properties. Rather, the declaration of a quality guarantee requires express written confirmation by KRENKO.

All orders and assignments as well as any special assurances from KRENKO require written (order) confirmation from KRENKO. This form can only be waived based on written agreements.

The contract is concluded subject to correct and timely delivery by our suppliers. This only applies in the event that we are responsible for the non-delivery, particularly if a congruent hedging transaction has been concluded with our supplier.

The customer will be informed immediately about the unavailability of the service. The consideration will be refunded immediately.

Order processing takes place within KRENKO with the help of automated data processing systems. The customer is hereby informed in accordance with Section 33 Paragraph 1 of the Federal Data Protection Act and Section 3 of the Telecommunications Protection Ordinance that KRENKO processes his address in machine-readable form and for tasks arising from the contract.

3. Price and maturity
The deliveries and services are carried out at the prices and conditions of the written order confirmation. The prices stated therein are binding. All prices are net prices and do not include VAT.
Invoices are payable net without any deductions within 14 days of receipt of the invoice. Deliveries and services are calculated as follows:

3.1 Services
For individual services, KRENKO employees record the daily working hours, indicating the item of the contract processed, in an activity report, which should be signed by the customer.

a) If remuneration is at a fixed price, KRENKO can invoice for the services provided. KRENKO is free to combine the services provided and bill them monthly.

b) If remuneration based on effort or a specific service quota has been agreed, KRENKO can calculate the days of service provided in the form of daily rates in the amount offered.

KRENKO can bill monthly if required.

The provision of an effort estimate is based on experience from similar projects and merely represents a non-binding guide. The customer cannot derive any claims from deviations from an effort estimate.

A daily rate covers 8 hours of work per day. Any work that goes beyond or is less than this will be paid proportionately. The daily rates refer to activities carried out between 8:00 a.m. and 5:00 p.m. Monday to Friday, excluding public holidays. If KRENKO employees work outside the aforementioned times with the customer's approval, the pro-rata daily rate increases by 50%.

3.2 For other orders, the service is calculated as follows:

a) For work contracts

aa) Merchandise 100% after delivery

ab) Project service
- If billing based on effort or a specific service quota has been agreed, the project service will be billed based on proof of activity. Section 3.1. Shall apply accordingly.
- Otherwise, the service will be billed based on the project progress (= achievement of certain milestones) if the parts of the service can be accepted separately or this is noted in the order confirmation.

b) Purchase contracts
are calculated after delivery. KRENKO is entitled to make partial deliveries.

4. Delivery dates
Delivery dates and deadlines are binding if they have been designated as binding in writing by the customer and KRENKO in individual cases, otherwise all delivery dates or deadlines are non-binding. The delivery period begins when the order confirmation is sent. KRENKO's compliance with the deadlines requires that the customer fulfills his obligations to cooperate as described in the order independently, qualifiedly and on time and in particular provides the information, documents, approvals and releases requested by KRENKO. If these requirements are not met, the deadlines will be extended appropriately, but at least by the period of delay. If non-compliance with a deadline is due to unforeseen obstacles that are beyond KRENKO's control, the deadline will be extended accordingly. Any postponement of the dates has no influence on the agreed payment plan.
If KRENKO culpably fails to meet the deadlines, the customer can, after a grace period set by KRENKO has expired, demand compensation for the period of delay of 0.5% per completed week, but a maximum of 5% in total of the remuneration for the part of the service that is in arrears. After a further grace period with the threat of rejection has passed, the customer can withdraw from the contract. KRENKO assumes no further liability in the event of delivery delays. This does not apply if liability is mandatory in cases of intent or gross negligence. KRENKO is entitled to carry out the service to be provided in partial deliveries. The payment deadlines in section 3 apply accordingly.

5. Transfer of risk
The risk is transferred to the customer when KRENKO dispatches the goods. However, KRENKO insures the goods against any transport damage at its own expense.

If the customer is an entrepreneur, the risk of accidental loss and accidental deterioration of the goods passes to the buyer upon handover, or in the case of mail order purchase, upon delivery of the item to the freight forwarder, freight carrier or other person or institution designated to carry out the shipment.

If the customer is a consumer, the risk of accidental loss and accidental deterioration of the item sold, even in the case of a mail order purchase, only passes to the buyer when the item is handed over.

The handover is deemed to be the same if the customer is in default of acceptance.

6. Retention of title
Until all claims (including all current account balance claims) to which KRENKO is entitled against the customer for any legal reason now or in the future have been fulfilled, KRENKO will be granted the following securities, which it will release upon request at its discretion, provided that their value sustainably covers the claims exceeds more than 20%.
The goods remain the property of KRENKO. Processing or transformation always takes place for KRENKO as the manufacturer, but without any obligation for them. If KRENKO's (co-)ownership expires through combination, it is already agreed that the customer's (co-)ownership of the uniform item will be transferred to KRENKO in proportion to the value (invoice value). The customer keeps the (joint) property of KRENKO free of charge. Goods to which KRENKO has (joint) ownership are hereinafter referred to as reserved goods.
The customer is entitled to process and sell the reserved goods in the normal course of business as long as he is not in default. Pledges or collateral assignments are inadmissible. The customer hereby assigns all claims arising from resale or other legal grounds (insurance, tort) relating to the reserved goods (including all balance claims from current accounts) to KRENKO as security. KRENKO revocably authorizes him to collect the claims assigned to KRENKO on his behalf in his own name. This collection authorization can only be revoked if the customer does not properly meet his payment obligations.
If third parties access the reserved goods, in particular seizures, the customer will point out KRENKO's ownership and notify them immediately so that KRENKO can enforce its ownership rights. If the third party is unable to reimburse KRENKO for the legal or extrajudicial costs incurred in this context, the customer is liable for this.
If the customer behaves in breach of contract - in particular late payment - KRENKO is entitled to take back the reserved goods or, if necessary, to demand assignment of the customer's claims for return against third parties. The taking back or seizure of the reserved goods by KRENKO does not constitute a withdrawal from the contract.

7. Erwerb von Lizenz- und Nutzungsrechten
The declarations of intent required for the acquisition of license and usage rights are subject to the condition precedent of full payment of the license purchase price.
If the customer fails to pay the license price when due, KRENKO may revoke the right to use the software. If KRENKO revokes the right of use, the Customer must pay the invoice within 7 days of receipt of the revocation. Otherwise the right of use shall be deemed to have been revoked. In this case, the Customer must uninstall all copies of the software and cease using it immediately. The uninstallation and termination of use must be confirmed by the customer in writing.
Revocation of the rights of use does not constitute withdrawal from the contract. KRENKO's right to claim damages for non-performance remains unaffected in all cases.
If the Customer resells the license or usage rights in the course of its business operations, it hereby assigns to KRENKO in full all claims arising from the resale or any other legal grounds (insurance, tort) in respect of the license rights (including all current account balance claims) by way of security.

8. Acceptance
Formal acceptance is only required if KRENKO provides project or work services that constitute a work contractual service within the meaning of the Civil Code. The service is deemed to have been accepted if the customer does not report defects in writing within 10 days of the operational readiness reported by KRENKO.

Partial services/partial deliveries are accepted separately. An economically sensible and purposeful use of the service by the end customer is equivalent to acceptance. Acceptance by the customer means acceptance of the services as essentially provided in accordance with the contract. The customer will not refuse acceptance due to insignificant defects. Defects must be recorded during the acceptance process on the acceptance report to be signed by both parties and will be remedied by KRENKO within the scope of KRENKO's warranty obligation. The customer can only refuse acceptance if there are errors of error class 1. Unless different regulations are made in individual cases, the following error classes are deemed to be agreed:

Error class 1: Errors that prevent acceptance - the error that occurs is so serious that the entire system cannot be used in an economically sensible manner due to the services described. If such an error occurs, KRENKO's contractual performance obligations have not been fulfilled, so that the customer can refuse acceptance.

Error class 2: Error that does not prevent acceptance - the error that occurs does not prevent the end customer from using the entire system as a whole in an economically sensible manner, but is likely to hinder the use of the entire system or important system parts for the sensible economic use of the entire system over a longer period of time. If such an error occurs, KRENKO's contractual services are considered to be essentially fulfilled, so that acceptance cannot be refused, but the error is still serious, so that KRENKO is obliged to remedy the defect immediately.

Error class 3: Insignificant defect that does not prevent acceptance - such a defect exists if the system deviates from the functionalities agreed in writing, but the deviation does not lead to permanent use of the entire system that prevents sensible economic use. Such a defect will be remedied by KRENKO within the scope of the usual warranty, without any time priorities. Otherwise, KRENKO’s warranty obligations stated in these conditions apply.

9. Warranty for software products/customizations
KRENKO is liable for the freedom from defects in the delivery/service within the warranty or limitation period granted by the licensor/software manufacturer. KRENKO will inform you about the warranty period upon request. The warranty period for in-house software and individual adaptations of software is one year.
Software products and operating systems from third-party companies (third-party software) are generally passed on by KRENKO on the basis and under the conditions of a software transfer and license agreement to be concluded separately between the third-party company and the customer. KRENKO provides no warranty for third-party software.

Furthermore, no warranty claims exist for software copies not supplied by KREN-KO or for software that is operated on a computer system that does not have the minimum hardware configuration and software equipment in accordance with the software product description.
In cases where KRENKO sells standard software in its own name, the regulations under section 9 apply accordingly.

KRENKO guarantees that software products (in-house software) developed and licensed by KRENKO for a fee fulfill the functions and performance characteristics that are contained in the software product description for the relevant in-house software products valid at the time the license is granted and are not affected by errors that could affect the value or the cancel or significantly reduce its suitability for the use intended in accordance with the contract. Furthermore, KRENKO guarantees that the proprietary software provided for use is free of third-party rights at the time the license is granted, which cancel or reduce the use required under the contract. The technical data, specifications and service descriptions in the software product description do not constitute a guarantee unless they have been expressly confirmed as such by KRENKO.

The customer is aware that, based on the current state of technology, errors in software and the associated other material cannot be ruled out.
KRENKO will correct software errors that not only insignificantly impair the intended use, at KRENKO's discretion and depending on the significance of the error, either by delivering an improved software version or by providing information on how to eliminate or circumvent the effects of the error.

If repeated attempts by KRENKO to make improvements are unsuccessful or if KRENKO does not offer an error-free new program version, the customer is entitled to either demand cancellation of the contract or a reasonable reduction in the purchase price.

The warranty claim does not apply to programs or program parts that have been changed or expanded by the customer himself or by a third party, unless the customer proves that such changes or expansions are not the cause of the defect. The warranty claim also does not apply to errors, malfunctions or damage that are due to improper operation, errors in hardware, operating systems, failure to comply with data backup regulations or other processes that lie outside KRENKO's area of ​​responsibility or if the client denies KRENKO the opportunity to identify the cause of the defect to investigate any reported error or defect.

10. Limitations of liability
KRENKO and its vicarious agents shall only be liable for damages, irrespective of the legal grounds, if the damage is due to intent or gross negligence or is attributable to the absence of a warranted characteristic or if a material contractual obligation is culpably breached in a manner that jeopardizes the purpose of the contract or if the damage is attributable to a case of impossibility or default for which KRENKO is responsible.
Liability is limited to the damage foreseeable at the time the contract was concluded.
There is no liability for indirect damage, consequential damage or loss of profit, unless the liability is based on intent or the absence of a warranted characteristic, provided that the warranty was intended to protect the customer from such damage.
Liability under the Product Liability Act remains unaffected by the above provisions.
KRENKO shall not be liable for the recovery of data unless KRENKO has caused their destruction through gross negligence or willful misconduct and the customer has ensured that these data can be reconstructed with reasonable effort from data material held in machine-readable form.
Any claims for damages against KRENKO, its vicarious agents or assistants shall become time-barred within one year of delivery of the products, in the case of systems from notification of operational readiness.

11. Software licenses/rights of use
The Customer is granted a non-exclusive and non-transferable right to use KRENKO software, third-party software (software developed by a software supplier independent of KRENKO) and the associated documentation and subsequent supplements for internal use with the products for which the software is supplied (all other rights to the software and documentation, including copies and subsequent supplements, remain with KRENKO or the software supplier). The type and scope of the transferred right of use is governed by the license terms of the respective manufacturer. The Customer must ensure that this software and documentation are not accessible to third parties without KRENKO's prior written consent. Copies may only be made for archiving purposes, as a replacement or for troubleshooting; sentences 1 and 2 apply accordingly. The transfer of source programs requires a special written agreement. If the originals bear a note indicating copyright protection, this note must also be affixed to the copies by the customer.

12. Export regulations
In the event that the purchased products are exported, the customer shall observe the German and American export regulations and inform its customer that German and American export regulations apply in the event of export.

13. Customs clearance
If deliveries are made duty unpaid at the Customer's request, the Customer shall be liable to KRENKO for any subsequent claims by the customs authorities.

14. Other
The Customer may only transfer the rights and obligations arising from the contract with KRENKO's written consent. The Customer may only offset against KRENKO's claims or assert a right of retention if the Customer's counterclaim is undisputed or has been legally established. These Terms and Conditions of Delivery and Payment shall remain valid in their remaining parts even if individual provisions are invalid. The place of performance is Dortmund. The place of jurisdiction for all contractual claims and claims in connection with the concluded contract is Dortmund if the customer is an entrepreneur. KRENKO is also entitled to assert claims before the court responsible for the Customer's place of residence or domicile. In the event of disputes, the law of the Federal Republic of Germany shall apply exclusively. The applicability of the UN Convention on Contracts for the International Sale of Goods of April 11, 1980 (UNCIT-RAL Sales Convention) is excluded.