General Terms and Conditions

(as at 2024)

General Terms and Conditions of pit-cup GmbH registered at Mannheim Local Court under commercial register number HRB 335193

These General Terms and Conditions of Business of pit-cup GmbH (hereinafter referred to as “GTC”) apply to all deliveries and services relating to software and hardware, including service and support services as well as services provided by pit-cup GmbH (hereinafter referred to as “pit-cup”). It is expressly pointed out that the contractual conditions for the transfer and use of pit-cup software are regulated separately in pit-cup’s individual license conditions and will be made available to you by pit-cup immediately upon request, but will be enclosed with the transferred software at the latest. The customer declares his agreement to the license conditions with the order, but at the latest when installing the software. As far as
The individual license conditions of pit-cup for the delivered software, the software support contract and these GTC apply in addition.

Scope of application

Deviations from these terms and conditions – in particular the validity of the purchaser’s purchasing instructions – require the express written approval of pit-cup.

Offers from pit-cup are always subject to change and non-binding, unless a binding nature is expressly agreed. Information in catalogs, brochures and similar documents as well as on the pit-cup homepage are only authoritative if they are expressly confirmed by pit-cup in the order confirmation. Orders are only deemed to have been accepted by pit-cup when they have been confirmed by pit-cup in writing or when the delivery and provision of services has actually begun.

All orders and agreements to and with pit-cup are only legally binding if they are signed in writing by pit-cup and only bind pit-cup to the extent specified in the order confirmation. A declaration by e-mail is sufficient to comply with the written form requirement.

pit-cup does not accept any terms and conditions of the customer that contradict these GTC. Customers’ terms and conditions are therefore not effective unless this is recognized and confirmed in writing by pit-cup.

Approvals required from third parties for the execution of an order must be obtained by the customer and not by pit-cup. The customer must inform pit-cup of this in full. The customer shall indemnify and hold pit-cup harmless in the event of any infringement. If the necessary permits have not yet been issued with legal effect, pit-cup is not obliged to provide its services.

Services and installations

Binding offers must be made in writing. Offers from pit-cup must be accepted immediately, with a time commitment within the commitment period. Changes to the offer upon acceptance by the customer are only valid if they are confirmed in writing by pit-cup; acceptances after expiry of the commitment period are deemed to be new offers by the customer. Partial deliveries are permitted.

The offer and the services of pit-cup are provided in accordance with the type and scope of the binding, written information, documents and other information provided in full by the client.
Auxiliary means. This also includes practical test data as well as a sufficient number of test options, which the customer makes available in good time, during normal working hours and at its own expense.

If the customer is already working in live operation on the system provided for testing, the customer is responsible for backing up the live data.

The basis for the creation of facility management adjustments etc. is the written service description of pit-cup. The service description must be checked by the customer for correctness and completeness and endorsed with his approval. Subsequent requests for changes may lead to separate agreements on dates and prices.

Individually created software or program adaptations require program acceptance by the customer no later than four weeks after delivery. If the customer allows the period of four weeks to elapse without accepting the program, the delivered software shall be deemed to have been accepted as of the end date of the aforementioned period. If the software is used in live operation by the customer, the software shall in any case be deemed to have been accepted.

The customer is not entitled to refuse acceptance of the delivered software due to minor defects. Insignificant defects are, for example, those that lead to the desired results through a different type of operation (work around) or play a subordinate role for the main benefit of the software.

When ordering software programs, the customer confirms with the order the knowledge of the scope of services of the ordered programs.

Should it become apparent in the course of pit-cup’s work that the execution of the order in accordance with the service description is impossible for factual or legal reasons, pit-cup is obliged to inform the client of this immediately. If the customer does not change the service description to this effect or does not create the conditions to make execution possible, pit-cup may refuse to execute the order. If the impossibility of execution is the result of a default by the client or a subsequent change to the service description by the client, pit-cup is entitled to withdraw from the order. The costs and expenses incurred for pit-cup’s activities up to that point, as well as any dismantling costs, shall be reimbursed by the client in this case.

There is only an obligation to install the software/hardware if this has been expressly agreed in writing and only to the extent agreed. The customer undertakes to provide all necessary
to cooperate (provision of the facilities in working order, presence of the necessary employees) in good time, in particular to back up the data. If a required act of cooperation is not carried out, pit-cup’s obligation to install the software and hardware lapses; in this case, the client is obliged to reimburse pit-cup for the costs incurred; the client’s contractual obligations remain unaffected. The contractual installation of the software shall be confirmed in writing by the customer (acceptance report). Partial installations are permitted.

Conclusion of contract

The contract with pit-cup is only deemed to have been concluded when pit-cup has sent the written order confirmation or has actually begun with the delivery and provision of services. Changes and/or additions to the order must be confirmed in writing by pit-cup in order to be valid.

Delivery and performance

Delivery deadlines must be included in the order confirmation. The delivery period shall commence at the latest date specified below, namely

• Date of order confirmation;
• Date of clarification and creation of all technical and legal requirements by the customer;
• Date on which the pit-cup has received the advance payments required before work is carried out.

The delivery periods stated by pit-cup are non-binding, unless expressly agreed otherwise in writing.

pit-cup shall not be responsible for delays in delivery caused by incorrect, incomplete or subsequently changed details and information or incorrect or incomplete documents provided by the client. Any resulting delay in execution shall be borne by the client. Any additional costs incurred as a result shall be borne by the client. The delivery deadlines are subject to the proviso that the service offered is dependent on suppliers and presuppose that pit-cup has been supplied by the supplier on time.

Delays due to

• force majeure;
• An important piece of work becoming unusable;
• Events that make delivery and performance significantly more difficult or impossible for pit-cup (material procurement problems, operational disruptions, strikes, official orders, etc.).

regardless of whether these circumstances occur at pit-cup itself or at suppliers, pit-cup is not responsible for them. The resulting delays lead to correspondingly extended delivery times. Such events entitle pit-cup to postpone its delivery or service by the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part due to the part of the order that has not yet been fulfilled. The customer shall not be entitled to any claims whatsoever.

The storage of the client’s documents by pit-cup shall only take place after prior written agreement and shall be remunerated separately.

In the event that the agreed service is not dispatched for more than one month for reasons within the customer’s sphere of responsibility or is even postponed at the customer’s express request, pit-cup’s service shall be deemed to have been rendered and pit-cup shall be entitled to store the product with third parties at the customer’s risk and expense.

The physical transportation of the customer’s documents and any services to and from the customer’s premises shall be carried out at the risk and expense of the customer to the address to be provided by the customer, provided that the transportation is to be carried out by pit-cup.

In the case of orders comprising several units or programs, pit-cup is entitled to make partial deliveries or issue partial invoices for these. Furthermore, pit-cup is entitled to make advance deliveries and to invoice these.

The agreed delivery deadlines can only be met by pit-cup if the client has carried out all necessary work and provided all documents completely and correctly at the times specified by pit-cup, in particular if the client provides the service description accepted by the client and the client also fulfills its obligation to cooperate.

In the event of a delay in delivery for which pit-cup is responsible, the following shall apply as agreed:

• If an agreed delivery period is exceeded, default in delivery shall only be deemed to have occurred after a reasonable grace period has been set.
• In commercial business transactions (Section 24 of the General Terms and Conditions Act), pit-cup is only responsible for the timely delivery of services for the provision of which pit-cup engages third parties, insofar as these are delivered on time.
• A delay demonstrably caused by gross negligence on the part of pit-cup entitles the
  The customer shall be entitled to claim compensation for delay per full week in the amount of 2% of the invoice value of the missing part of the delivery/service concerned, up to a maximum of 10% of the respective invoice value.
• Any further claims for damages by the customer are expressly excluded, in particular for slight negligence.

Shipping, fulfillment and transfer of risk

The place of performance for the mutual obligations is generally the registered office of pit-cup. The dispatch takes placeunless the customer requests another form of shipment, at the discretion of pit-cup via FTP download or via remote access to the customer’s system by pit-cup. If the customer wishes to have the ordered goods sent to another location by means of program carriers (e.g. dongle), the shipping costs shall be borne by the customer. The risk is transferred to the customer when the goods are handed over to the carrier. Unless otherwise agreed, pit-cup may select the means of transportation and transport personnel.

Benefit and risk shall pass to the customer if

• the delivery leaves the pit-cup warehouse or
• the service acc. 4.a. regardless of the terms of payment agreed for the delivery or service.

 

Separate agreements on quality inspection shall not affect the provision on the place of performance and transfer of risk to the customer.

Documents handed over to pit-cup shall remain with it exclusively at the risk of the customer. The pit-cup is exempt from any liability for damage or loss of these documents for any reason whatsoever.
Excluded from this is damage or loss due to gross negligence on the part of pit-cup.

Payment modalities

All prices are quoted in euros ex pit-cup warehouse plus the respective statutory VAT. Deliveries or services that exceed the scope of services can be invoiced separately by pit-cup.

The prices are based on the pit-cup price list. Costs at the time of their announcement according to the offer. pit-cup is entitled to adjust the prices if

• on the one hand, the order deviates from an overall offer or
• on the other hand, the prices according to the pit-cup price list have changed at the time of delivery and/or service provision.

For all services (e.g. installations, consulting, training, programming), the work involved shall be invoiced at the rates applicable on the day the service is provided in accordance with the price list. Temporal
Deviations from the time expenditure on which the offer is based may occur. Billing is ultimately based on the actual time spent.

The costs for travel, daily flat rates and overnight stays shall be invoiced separately to the client by pit-cup according to the respective rates. Travel time from pit-cup’s registered office to the client’s place of work will only be charged by prior agreement.

Invoices from pit-cup are due without deduction 10 days after the invoice date, unless the due date has been changed on the invoice, and are payable strictly net cash.

The submission of bills of exchange requires the consent of pit-cup; their charges and costs as well as the risk of timely presentation and protesting shall be borne in full by the client. Cheques are credited subject to receipt with the value date of the day on which pit-cup can dispose of the equivalent value.

If the payment deadline is exceeded, interest shall be charged at 5 percentage points above the prime rate in accordance with § 288 BGB, subject to the assertion of further damages.

Compliance with the agreed payment deadlines is an essential condition for the performance of the delivery and service by pit-cup. In the event of non-compliance with the agreed terms of payment, the
pit-cup is entitled to withhold and suspend ongoing work. If the customer does not meet his payment obligations despite a grace period of at least 10 days, pit-cup is entitled to withdraw from the contract. All associated costs shall be borne by the customer. The previous services of pit-cup will be invoiced and are to be replaced by the customer.

In the case of orders comprising several units, pit-cup is entitled to invoice after delivery of each individual unit or service. The terms of payment specified for the overall order shall apply to the partial invoices.

The customer is not entitled to withhold payments due to incomplete overall delivery, guarantee or warranty claims or alleged defects. In particular, the customer waives
to withhold payments due to an objection of non-performance of the contract.

Only undisputed or legally established claims shall entitle the customer to offset or withhold payment.

The customer shall bear the costs for payments from abroad to the Federal Republic of Germany.

The customer acknowledges that pit-cup has the right to assign claims.

Force majeure

Cases of force majeure – circumstances and occurrences that cannot be prevented with the diligence of proper business management – shall suspend the contractual obligations of the parties for the duration of the disruption and to the extent of its effect. If delays resulting from this exceed the period of 12 weeks, both contractual partners shall be entitled to withdraw from the contract with regard to the scope of services affected. There are no other claims.

Retention of title

pit-cup ret ains ownership of the products and services it supplies as well as of the products and developments resulting from the treatment and processing until all claims pit-cup is entitled to against the customer now or in the future have been fulfilled. Measures that affect the retention of title of the
pit-cup, the pit-cup must be informed immediately. The customer shall bear all costs of intervention proceedings and all defensive measures that pit-cup deems necessary. The customer is authorized to dispose of the delivered goods in the ordinary course of business. The customer hereby assigns the claims against third parties arising from the resale in total or in the amount of any
co-ownership share of pit-cup (see b. below) to pit-cup as security. He is authorized to collect these for the account of pit-cup until revocation or cessation of his payments to pit-cup. The client is also not authorized to assign these claims for the purpose of debt collection by way of factoring, unless the obligation of the factor is simultaneously established to effect the consideration in the amount of pit-cup’s share of the claim directly to pit-cup for as long as pit-cup still has claims against the client. Access by third parties to the goods and claims belonging to pit-cup must be notified to pit-cup by the customer immediately by registered letter.

The retention of title also extends to the full value of the products resulting from the processing, mixing or combining of pit-cup’s goods, whereby pit-cup is deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, pit-cup shall acquire co-ownership in proportion to the invoice values of these processed goods.

The exercise of the retention of title does not mean withdrawal from the contract.

The goods and the claims replacing them may not be pledged to third parties or transferred or assigned as security before pit-cup’s claims have been paid in full.

Copyright and use

pit-cup reserves all rights to the designs, offers and projects it uses,
programs, documentation, drawings, dimensional drawings and descriptions. The copyrights belong to pit-cup or its licensors. The documents of pit-cup, even if they do not originate from pit-cup (e.g. in the case of programs obtained by pit-cup from third parties), may not be used by the client in any way that goes beyond the content of the contract. In particular, they may not be reproduced or made accessible to third parties. The documents must be returned to pit-cup immediately upon request and may not be reproduced.

The client is obliged to indemnify and hold pit-cup harmless against all claims asserted by third parties arising from the infringement of copyrights, ancillary copyrights, other industrial property rights, data protection rights or personal rights. pit-cup undertakes to notify the customer of any legal dispute brought against it. If the customer enters the procedure as
If the other party to the dispute does not join the pit-cup, the pit-cup is also entitled to recognize the claim.

The customer shall only have the right to use the goods and services (in particular the software) after
The licensee may only use the hardware specified in the contract and only to the extent of the number of licenses purchased for simultaneous use on several workstations.

The present agreement merely grants a license to use the work. Distribution by the customer is excluded and prohibited under copyright law.

Even if the customer participates in the production of software, no rights are acquired beyond the uses specified in this contract. The copyrights belong exclusively and solely to pit-cup. The customer shall not acquire any rights to the software development or vis-à-vis pit-cup as a result of participating in the software development.

pit-cup is entitled to print its company and/or brand name on the products to be manufactured even without the express permission of the customer.

Warranty

The following applies to the provision of hardware and the physical objects of the software in the area of commercial business transactions (Section 24 of the General Terms and Conditions Act):

Claims for defects on the part of the customer presuppose that he has properly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code). Otherwise the goods shall be deemed
approved.

The limitation period for the customer’s claims for defects for the sale of new goods is one year from the transfer of risk; liability for material defects is excluded for the sale of used goods.

The warranty obligation of pit-cup is limited to replacement delivery, conversion, reduction or rectification at its discretion. Rejected goods may only be returned with the express consent of pit-cup.

For the transfer of hardware and the physical objects of the software, the following shall apply in non-commercial business transactions:

The warranty period for all physical items delivered is 2 years from delivery.
However, obvious defects must be reported within 10 working days of delivery, otherwise pit-cup is exempt from liability for defects.

If a defect covered by the warranty cannot be rectified within 6 weeks or if pit-cup refuses to rectify the defect, the customer may request a replacement delivery, a reduction in the purchase price (abatement) or
demand rescission of the contract (conversion).

Faults caused by damage, incorrect connection or incorrect operation by the customer are excluded from any warranty.

Liability on the part of pit-cup for defects in third-party software and hardware is excluded.

Compensation for damages

pit-cup is liable to the customer for damages that pit-cup, its legal representatives, other employees or vicarious agents have caused intentionally or through gross negligence in the fulfillment of their contractual obligations.

In the event of slight negligence, pit-cup is only liable if obligations have been breached that are essential for the fulfillment and achievement of the purpose of the contract (cardinal obligations). Insofar as liability exists on the merits, the obligation to pay compensation is limited to the foreseeable damage typical of the contract.

Further claims by the customer, regardless of the legal grounds, are excluded. In particular, pit-cup is not liable for consequential damages or other financial losses of the customer, especially not for loss of profit.

The above exemptions from liability shall not apply in the event of injury to life, limb or health or where the Product Liability Act applies.

The liability of pit-cup for data loss or data damage is limited to intent and gross negligence. Liability shall only apply if the customer takes appropriate and state-of-the-art security measures to ensure that the data can be retrieved in a reasonable manner.
Otherwise pit-cup is exempt from liability.

Insofar as the contractual liability of pit-cup is excluded or limited, this also applies to the personal liability of its employees, legal representatives and vicarious agents.

Services, software support services:

Unless otherwise agreed, the contractual service and support services shall be provided by pit-cup at the location of the computer system or at the premises of pit-cup, at the latter’s discretion.
business premises of pit-cup within normal working hours. If, in exceptional cases and at the request of the client, a service is provided outside normal working hours, the additional costs shall be invoiced separately by pit-cup to the client.

In the event of unjustified use of services (e.g. lack of maintenance contract, unjustified notification of defects), pit-cup is entitled to invoice the customer for the costs incurred at the applicable cost rates.

The validity of the prices for services and software support services, the billing modes and the service and hotline packages of pit-cup are regulated in separate contracts (program service agreement, subscription contracts). Insofar as no special provisions are made therein, the present GTC shall also apply to these products.

Withdrawal from the contract:

Furthermore, pit-cup is entitled to withdraw from the contract if

• the execution of the delivery or service as well as the commencement and continuation are impossible for reasons for which the customer is responsible or are further delayed despite the setting of a grace period;
• the customer refuses to make advance payment at the request of pit-cup or to provide suitable security before delivery if there are concerns about his creditworthiness;
• insolvency proceedings have been initiated against the customer’s assets or such proceedings have
  assets to cover the costs.

In the event of withdrawal from the contract, pit-cup’s claim to payment for services and deliveries already rendered as well as for advance services rendered with regard to the fulfillment of the contract shall remain in force. This shall not affect pit-cup. Even if no delivery or service is provided to the customer, pit-cup is entitled to compensation for the costs incurred in preparing the order.

Data protection and confidentiality:

pit-cup undertakes to ensure that its employees or persons attributable to its sphere of influence comply with the provisions of the Data Protection Act. pit-cup undertakes to treat confidential information as confidential and only to pass it on to those employees who necessarily need to have it.

The customer expressly agrees that his company name, his brand and general information about the order may be used for advertising purposes by pit-cup, such as for sending offers, advertising brochures and newsletters, as well as for the purpose of referring to the existing or previous business relationship with the customer (reference), both in paper form and in electronic form (e-mail, homepage). The customer agrees that electronic mail may be sent to him for advertising purposes until further notice. This consent can be revoked by the customer at any time in writing by e-mail or letter.

Place of jurisdiction, choice of law:

The place of jurisdiction is Heidelberg. The law of the Federal Republic of Germany shall apply.

Written form:

This contract contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior oral or written agreements. Changes and
Amendments to this contract, including the waiver of the written form requirement, must be made in writing.

Other provisions:

Should one or more provisions of this agreement be or become invalid, this shall not affect the remainder of this agreement. In this case, the parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the economic and ideal purpose of the invalid provision.