General delivery and service conditions for commercial customers abroad
Version January 1, 2022
A. Scope of validity
The following General Delivery and Service Conditions and the terms of delivery and terms of service and the appendix sheet (Version January 1, 2022) to these conditions shall exclusively apply for all deliveries and services, which GARANT provides for companies not resident in Germany (hereinafter referred to as the “Customer” or “Customers”). Deviating terms and conditions of the customer shall not apply even if GARANT does not explicitly object to them or provides the unconditional delivery or services to the customer in the knowledge of these conditions. In addition, the written declarations of both parties shall apply.
B. General part, which applies for all customer contracts
1 Offers, conclusions of contract, written form, scope
1.1 The offers from GARANT are subject to change without notice; details in brochures or other public product descriptions, catalogs, advertisements (e.g. websites/onlineshop), documents, illustrations, drawings, etc., are only approximate and do not determine the quality of the deliveries and services.
1.2 Insofar as no other agreements have been made, customer contracts for movable goods (machines, assemblies, individual/spare parts, systems, materials, hardware and software) and services are only concluded through the written confirmation of the order by GARANT. The written form shall also be satisfied by e-mail, text or fax.
1.3 GARANT shall reserve the ownership, copyright, and other commercial property rights to cost estimates, drawings, technical documents, computer programs, databases, data, and similar information of physical and nonphysical nature, also in electronic form, as well as business and trade secrets; the information must be kept confidential and may only be disclosed to third parties with the consent of GARANT. Otherwise, Section 2.2 shall apply.
1.4 Only the written acknowledgment of the order by GARANT shall be definitive regarding the scope, content and quality of the deliveries and services insofar as no other agreements have been made. Information regarding the quality of the deliveries and services shall not represent guarantees or guaranteed characteristics. Ancillary agreements and amendments shall require written confirmation by GARANT. GARANT shall reserve the right to invoice the work for cost estimates if the deliveries and services are not ordered by the customer.
2 Data protection, confidentiality
2.1 All customer data required for processing as part of a business relationship (for example, for goods and payment transactions, credit checks, insurance) may be recorded, stored and processed by GARANT and, if necessary, also transmitted to a third party. GARANT shall only process and use the customer data provided to the extent permitted by law. For further information, please consult the GARANT Privacy Statement, which is available at https://www.garant.wh.group/en/company/about_us/privacy_policy/ .
2.2 The parties shall treat as confidential any business or operational information of the parties which has been identified as confidential within the framework of the implementation of the customer contract or where a recognizable interest in confidentiality exists. This does not apply to information which was known to the receiving party or public knowledge at the time of transmission or became public knowledge at a later point in time without a confidentiality breach by the receiving party. Employees, consultants or other service providers shall also be committed to maintaining confidentiality.
3 Price, terms of payment, retention of title
3.1 Unless otherwise agreed, the prices for the supply of goods shall be FCA (Incoterms 2020) from the GARANT warehouse or GARANT plant including loading but excluding freight costs, insurance costs, return costs for packaging, as well as assembly costs.Services shall be charged by time and expense, unless otherwise agreed, on the basis of the GARANT billing rates for the GARANT service personnel applicable at the time the work is carried out, as well as the working times verified by the customer. If the time records are not approved by the customer or not in a timely manner, the invoicing shall be based on the specified GARANT activity records. Partial invoices are permitted. When billing preventive maintenance, assembly and repairs, the prices for parts, materials and special services used, as well as the prices for labor and travel and incidental travel costs shall be shown separately in each case. Unless otherwise agreed, the prices shall be as above in EUROS; billing shall be carried out either as a lump sumor according to the time and effort. Prices shall be subject to value added tax at the applicable rate. The fees, direct/indirect taxes, customs duties, costs or other official/state fees arising or charged in the country of the customer for all agreed deliveries or services by GARANT shall be borne and paid by the customer. This shall include, in particular, with holding taxes, import duties, sales taxes, stamp duties, registration taxes, etc.
3.2 Unless otherwise agreed, invoices shall be due immediately, and without deduction of discount, taxes, customs duties, fees or other charges or expenses. The place of performance for all payments is Lengerich.
3.3 Bills of exchange and checks shall only be accepted on account of performance and regarded as payment after their redemption. Costs and discount charges shall be borne by the customer.
3.4 If the customer fails to comply with the agreed terms of payment, GARANT shall be entitled to suspend and withhold the performance of its deliveries and services. The same shall also apply if circumstances become known after the conclusion of the contract which endanger the credit worthiness and performance of the customer. In such cases, deliveries and services from GARANT shall only be made against advance payment or provision of adequate payment securities.
3.5 The customer may only offset counterclaims or hold back payments if such counter-claims are undisputed or legally established.
3.6 GARANT reserves the title to the delivered goods until receipt of all payments, also for any eventual additional services (e.g. assembly services) arising from the customer contract. If the retention of title must be entered into a registry or, in general, result from a document with “secure date” in order to assert claims towards third parties, then the customer shall be obliged to cooperate with appropriate measures. The same shall also apply if the applicable law of the country in which the goods shall be delivered does not permit retention of title, but allows other security rights (e.g. a registered lien). Until full payment of the goods, the customer must adequately insure these at its own cost against all risks and damages. The customer may neither sell nor pledge the goods, nor transfer ownership by way of security. In the case of garnishments, seizures or other dispositions by third parties, the customer must inform GARANT thereof without delay. If the customer should default with respect to the performance of its contractual obligations toward GARANT, GARANT shall be entitled to withdraw from the contract, and demand return of the reserved goods from the customer.
4 Deadlines, force majeure
4.1 Dates and deadlines for deliveries or services to be providedby GARANT must be agreed in writing between the parties. The delivery time for goods shall begin with the conclusion of the customer contract or the date of the GARANT order confirmation, and the payment of an agreed initial deposit. The compliance with delivery dates/delivery deadlines requires the resolution of all technical and commercial issues, as well as the timely fulfillment of the obligations to which the customer is subject in accordance with the appendix sheet (Version January1, 2022) in particular, the completion of the GARANT questionnaire and the approval of plans/drawings, as wellas the payment of any advance payments. This shall not apply where GARANT is responsible for the delay. The delivery deadline has been met if the goods leave the GARANT plant or warehouse or GARANT has provided a notification of the time of readiness for shipment.
4.2 In the event of force majeure, the parties shall be released from the fulfillment of their contractual obligations to the extent that and as long as they are prevented from fulfilling these obligations due to unforeseeable events beyond the will of the parties. Such events are, in particular, natural disasters, fire, war or war-like conditions, revolutions, political unrest, terrorism, embargo, seizure, strikes, lockouts, official directives or recommendations (e.g.travel warnings), traffic accidents, breakdowns, piracy, pandemic, delivery delays of subcontractors/suppliers, cyber attacks, shortage of energy and raw materials. In such cases, the parties shall promptly inform each other and determine the further proceedings. Notwithstanding, following the expiration of a period of six (6) months, each party shall be entitled to withdraw from the customer contract with immediate effect if the impediment to fulfillment lasts for more than six (6) months.
5 Assumption of risk, partial delivery, storage, acceptance
5.1 Unless otherwise agreed between the parties, the risk shall be transferred to the customer no later than the dispatch of the goods to the customer FCA Lengerich (Incoterms 2020), and even if partial deliveries are made or GARANT shall provide other services, e.g. the shipment costs or transportation and set-up. Partial deliveries are permitted where reasonable.
5.2 If the delivery is delayed due to circumstances for which GARANT is not responsible, the risk shall pass to the customer on the day of the readiness for dispatch, and the customer must, insofar as it is responsible for the delay indelivery, pay the due purchase price upon delivery. The limitation period for claims a rising from defects begins on the day of the readiness for dispatch notification and entrance into storage. In such a case, GARANT shall be entitled to charge the customer the costs incurred throughthe storage. Unless otherwise agreed, at least half a percentage point per month of the value of the part of that complete delivery which is stored by GARANT as of the notification of readiness for shipment shall be agreed to be paid as a lump sum. The proof of higher or lower costs by the parties remains unaffected. GARANT reserves the right to withdraw from the contractand to demand compensation for damages if the goods are not received after the expiry of a reasonable period determined by GARANT.
5.3 If the parties have agreed on approval for a new machineat the customer’s plant, the following shall apply:
- The customer has provided all of its services and fulfilled its obligations as defined in the appendixsheet (Version January 1, 2022) in good time.
- The commissioning shall be carried out immediately after the assembly/installation of the machine.
- The customer must accept the machine if, in the scope of the commissioning and acceptance testing, no or only minor defects are found, which do not significantly impair the function of the machine.
- The customer shall not be entitled to use the machine prior to acceptance. The machine shall also be regarded as having been accepted if the customer unduly refuses acceptance or utilizes the machine under production conditions.
- In case of defects or non-compliance with the agreed acceptance conditions, GARANT shall be given opportunity to rectify the defects within a reasonable period of time.
- If the rectification of defects fails even after repeated attempts, the customer shall be entitled to a reduction of the price.
- If the irreparable defects or deviations are so serious that the acceptance by the customer is commercially unreasonable, the customer may withdraw from the contract. In the event of withdrawal from the contract, GARANT shall successively pay back the purchase price to the customer against return of the machine.
- GARANT shall be liable for damages which did not occur to the delivered goods themselves in accordance with section 7.
6 Defects, limitation period
6.1 The deliveries and services of GARANT correspond to the recognized, as well as the tried and tested state of technology. The customer must immediately inspect the goods and work performed by GARANT. GARANT must be notified of any defects at the latest within eight (8) days after their discovery in writing, and these defects must be described in detail. The goods delivered and the work carried out shall be considered as having been approved if acomplaint/notification is not submitted in due time. The customer shall grant GARANT a reasonable deadline for the rectification of defects. The manner of the rectification of defects (subsequent improvement or replacement of defective parts) shall be determined by GARANT. The supply of parts which must be replaced shall be subject to DAP installation location (Incoterms 2020). Any replaced parts shall become the property of GARANT. The customer can reduce the agreed remuneration if, despite multiple attempts to rectify the defects, a minor defect remains. The customer may withdraw from the contract if a remaining defect is so significant that holding to the contract is economically unfeasible for the customer. Further claims are excluded. Otherwise, Section 7 shall apply.
6.2 The Customer’s right to assert claims arising from defects shall become statute-barred for new machines, new goods and the assembly of new machines twelve (12) months from the date of delivery or commissioning or acceptance.
6.3 Unless otherwise agreed, GARANT shall be liable for claims which are proven to be the result of defective other deliveries, incorrect assembly, repairs, preventive maintenance, retrofits, training, remote and tele-services, as wellas other services for a period of six (6) months from the date of performance of the services or acceptance of theservices. If, during the warranty period, parts of a machine shall be replaced or services provided free of charge, a limitation period of six (6) months shall also apply.
6.4 Claims due to defects shall not apply (i) for assembly, commissioning, modifications, repairs, preventive maintenanceand inspections, which are carried out incorrectly or improperly by the customer or third parties, (ii) for the non-compliance with the GARANT operating instructions and documentation, natural wear and tear, use of unsuitable operating and production resources, (iii) for the nonuse of original spare parts, (iv) for provision of parts and materials by the customer, as well as designs and work carried out contrary to GARANT instructions at the express request of the customer, (v) for software changes carried out by the customer or software additions, (vi) in case of delayed notification of defects in accordance with section 6.1.Unless otherwise agreed, any defect claims for used machinesor used parts are also excluded.
6.5 The goods delivered by GARANT are free of industrial property rights of third parties at the contractually agreed installation location. Should a third party assert a justified claim toward the customer due to the infringement of industrial property rights or copyrights claims, GARANT Shell, at its discretion and at its own expense, obtain a right of use or modify or replace its deliveries and services in such a way that the violation of industrial property rights does not exist. If this is not possible with reasonable effort, the parties shall be entitled to withdraw from the contract
6.6 Section 6.5 shall only apply under the following conditions: The customer must notify GARANT immediately in writing of any claims by a third party. The customer must not acknowledge the violation and must authorize GARANT to undertake a judicial or extra-judicial dispute with the third party alone. The claims of the third party must not be based on the fact that the customer has changed the machines/goods or utilized these under other conditions or with parts not supplied by GARANT.
6.7 Furthermore, GARANT shall not accept any liability for the fact that the products manufactured with the GARANT machines are free of proprietary rights of third parties. Otherwise, Section 7 shall apply.
7.1 Damages, compensation for outlay and other costs of the customer, irrespective of which legal reasons, shall be excluded. In particular, liability for damages such as loss of profits, loss of production, loss of customer/orders, damage to data, capital and financing costs, goodwill, as well as other direct/indirect damages is excluded. The exclusion of liability shall not apply in the event of malice or gross negligence or where liability is legally mandated in accordance with the Product Liability Act or due to injury of life, limb or health.
7.2 To the extent that the customer is entitled to claims in accordance with this Section 7, these claims shall lapse with the expiration of the limitation period applicable to claims for defects as per Sections 6.2 and 6.3. The legal deadlines shall apply for intentional malicious behavior, as well as claims in keeping with the Product Liability Act or due to culpable injury of life, limb or health.
8 Severability clause, applicable law, court of arbitration
8.1 Should one of the provisions of these terms and conditions be or become partially or completely invalid or ineffective, the validity of the remaining provisions shall remain unaffected. The invalid provision shall be agreed to be replaced by an effective provision which most closely reflects the commercial purpose intended by the parties.
8.2 All disputes arising in connection with these terms and conditions and the legal relationships of the parties shall be subject to the final decision of one or more arbitrators appointed in accordance with the rules of settlement and arbitration of the International Chamber of Commerce. The contract is exclusively subject to the substantive law of the country of Switzerland. Application of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) is excluded. The place of arbitration is Zurich. The language of the arbitration between the parties is the language chosen for the respective customer contract negotiation and contract.
C. Special part, which applies for individual modules of a customer contract
9. New machines, commissioning, training, assembly, repairs
9.1 Unless otherwise agreed, the safety-related equipment on new machines corresponds to the regulations applicable at the headquarters of GARANT in Germany.
9.2 Unless otherwise agreed, the commissioning of a new machine shall be carried out by GARANT; the customer must provide the necessary and technically qualified personnel for the assembly and commissioning of a machine. GARANT performs a brief introduction to the security aspects and the operation of the machine(s) for the customer’s personnel. Advanced training and instruction are carried out by GARANT only if this is expressly contractually agreed between GARANT and the customer. Production assistance is not included in the scope of advanced training and instruction. For training not provided within the scope of machine business, those conditions contained in the respective customer contract (e.g. a life cycle contract) or the seminar and participation conditions for the W&H Academy shall apply.
GARANT shall not be liable for damages caused by subcontractors commissioned by the customer or personnel provided by the customer. This shall not apply to the extent that such damages are verifiably the result of a breach of the duty of supervision or incorrect instructions on the part of GARANT.
9.3 If there is a delay in the completion of the assembly or repair work due to circumstances for which GARANT is not responsible, a reasonable extension of the performance deadlines shall be granted. The customer shall bear the costs incurred by the delay. This shall also apply in the event of interruption of the work which requires the withdrawal of the deployed GARANT personnel. All costs incurred in this context, such as waiting times, travel expenses and incidental travel costs shall be borne by the customer. The GARANT billing rates for the service personnel shall apply. The customer shall inform GARANT about existing industrial property rights or property rights if parts must be assembled, repaired or modified, which are not produced or supplied by GARANT (third-party parts). The customer shall indemnify GARANT from claims by third parties due to industrial property rights or property rights breaches in this context. The customer shall be obligated to accept the assembly, repair or other services as soon as they have been notified of their completion, and any contractually agreed acceptance has successfully taken place. The customer may not refuse acceptance if there are no significant defects. Otherwise, Section 5.3 shall apply. Upon acceptance, the liability for defects is excluded, insofar as the customer has not reserved the right to assert claims for a specific defect. The GARANT service employees are not committed to issue legally binding statements on behalf of GARANT or provide additional services beyond the scope agreed with the customer.
9.4 Otherwise, the appendix sheet to the general delivery and service conditions (Version January 1, 2022) shall apply. The customer must carry out and comply with all of the services and obligations listed in the attachment sheet on time.
10. Telephone hotline, remote support
10.1 The GARANT telephone hotline service is available from Monday to Friday for the period between 6 a.m. and 6 p.m. (this shall not apply to public holidays) to receive messages, and can be reached worldwide via the service number +49 5481 809-8777. The contact languages are German and English. GARANT supports customers via telephone in the event of faults, requests regarding repairs, preventive maintenance and process engineering.
10.2 Remote support shall be carried out via online remote access using a secure Internet connection.
Remote support services shall be carried out by transmitting sounds, images, videos and documents via smartphones or other mobile terminal devices using a secure Internet connection. GARANT may utilize video recordings which exclusively concern the production processes within a machine for training purposes. Otherwise, Section 12.1 shall apply. Remote support is also hereinafter referred to as remote diagnostic. Before remote diagnostic is carried out, the customer must back up the necessary data; if the machine is restored to its previous state using a data backup, the customer must ensure that all relevant functions on the machine are checked again.
10.3 The customer shall contact GARANT via telephone, chat or e-mail using those channels officially listed on the GARANT web-site with an exact description of the fault or the technical problem on a machine supplied by GARANT. If necessary, the customer shall activate the function to enable access for remote support to the machine. Smart glasses or mobile terminal devices access the system via a wireless LAN (local area network) or mobile network. After the access has been approved, a GARANT service employee accesses the machine automation in order to view the operating, parameter, service and alarm pages of the machine. The customer shall ensure that the machine is connected with the communication medium in accordance with the agreed means of data transmission.
The GARANT service employee shall analyze the available information and searches for anomalies and deviations between the actual and target states. When determining, locating, reporting and describing faults or problems, the customer must follow the instructions given by GARANT. The verbal and the written exchange of information between the GARANT specialist and the customer takes place in German or English.
10.4 The customer shall ensure the operational safety and security of transmission of its machine(s), as well as its IT infrastructure. The person authorized by the customer may only approve the remote diagnosis when all safety devices are in place and functional, the safe state of the machine is guaranteed, and there are no people in any danger zones. The customer must notify GARANT that the intended remote diagnostic measures can be carried out safely. The responsibility and decision-making authority for the operation of the machine shall remain with the customer. The remote diagnostic cannot replace regular preventive maintenance and technical safety inspections of the machine. In all other respects, the GARANT operating instructions shall apply.
10.5 If GARANT identifies any deviations during the remote diagnostic, the parties shall agree on corrective and preventive maintenance work which can be carried out at reasonable cost, and without delay. If the fault cannot be rectified or cannot be rectified completely by the remote diagnostic service, GARANT shall inform the customer accordingly, and coordinate the further proceedings with the customer. If necessary, and at the request of the customer, GARANT shall propose further preventive and corrective maintenance measures, and offer these in accordance with its applicable billing rates. Further measures can consist of, for example, the supply of spare parts and software updates, the use of service technicians on site or carrying out of training. Such services shall be agreed upon between the parties separately and paid for by the customer. Within the scope of the aforementioned cases, GARANT shall document the relevant data and/or deviations of the respective machine(s) determined via the remote diagnostic, and inform the customer about the work performed.
10.6. If, when providing the services, GARANT determines that the deviations are a result of external force, other unforeseeable influences, improper operation or failure to observe the installation or environmental conditions specified by GARANT, then GARANT shall not be obliged to provide remote corrective or preventive maintenance services as per the above sections 10.2 and 10.4. The same shall also apply if the customer or a third party carries out any changes or modifications to the machine, in particular to the control hardware/software, after delivery and acceptance of the machine(s). Furthermore, GARANT does not guarantee that the remote diagnostic service provided shall diagnose and rectify all existing faults on and damage to the machine(s). In particular, GARANT does not grant any function or availability guarantees for the machine(s).
10.7 The GARANT remote diagnostic services focus on support for the production machine; a transfer of personal data to GARANT does not take place. Otherwise, Section 12.1 shall apply. Otherwise, the appendix sheet to the general delivery and service conditions (Version January 1, 2022) shall apply. The customer must carry out and comply with all of the services and obligations listed in the attachment sheet on time.
10.8 Unless otherwise agreed in the contract for the supply of a GARANT machine, the remote diagnosis is free of charge for the customer within the warranty period. After the expiry of the agreed warranty period for a supplied GARANT machine, the customer must pay for the remote diagnostic services. Unless otherwise agreed, an individual remuneration for the remote support shall be agreed between the parties.
11 Maintenance, retrofit, used machines, machine relocation
11.1 Inspection, preventive maintenance, corrective maintenance, life cycle services Preventive maintenance and inspections primarily consist of the adjustment, cleaning, lubrication, and checking of the machine(s) and devices to assess their condition and function. Corrective maintenance primarily consists of the rectification of faults and defects by replacing or preparing parts that have become damaged, as well as supplying spare parts. Life cycle services primarily consist of regular inspections and customer visits. The precise scope of services, the dates, remuneration, response times, etc. for the specified service packages shall be regulated between GARANT and the customer in individual service contracts.
Unless otherwise agreed in the individual agreements, there will be
- no overhaul of the machine(s) or devices,
- no delivery/installation of additional equipment and parts due to new or amended regulations, in particular with regard to the safety technology,
- no rectification of damage caused by non-compliance with the GARANT operating instructions or due to external force or other influences (e.g. overvoltage, weather conditions, etc.).
The GARANT offers for the retrofitting of machine(s) are based on the technical properties of the machine(s) at the time of their initial delivery. All changes not carried out by GARANT but by the customer or other third parties after the initial delivery are not taken into account in the description of supplies and services in GARANT offers or order confirmations. As such, additional deliveries and services may be identified during the installation of equipment in the customer’s existing machine(s), which deviate from the descriptions in the GARANT offers/GARANT order confirmations. The expenses and costs for all additional unforeseen services shall be invoiced separately. if the performance of the deliveries and services is not possible due to the aforementioned reasons, GARANT reserves the right to withdraw from the contract. Furthermore, retrofitting a machine(s) can also trigger a requirement to standardize the entire machine(s) using the most up-to-date safety equipment in accordance with the national safety regulations in the country of installation/use from the responsible market supervision/accident insurance institution, or in accordance with the relevant national regulations from the occupational safety officer. Used machines or an entire group of machines which are significantly modified as a result of retrofitting must also comply with the currently valid Machinery Directive. A change is “significant” if a new safety concept is required in order to continue safely operating the machine/group of machines after a retrofit, and this cannot be implemented with simple protective devices. This applies, in particular, for machines within the European Economic Area (EEA and Switzerland).
11.3. Used machines
Unless otherwise agreed, used machines shall be sold by GARANT in an “as is” condition, i.e. without any repairs or warranty. However, used machines may also be offered including technical inspection or an overhaul, i.e. the mechanical parts of the used machines are tested to see that they are in working order, are cleaned, and any damaged parts replaced.
11.4 Machine relocation
Machine relocations primarily consist of the mechanical and electrical disassembly of machines, as well as the reassembly at the new site. The precise scope of services, deadlines, remuneration, etc. shall be regulated between GARANT and the customer in the individual service contracts.
12 Machine data, leasing and licensing of software
12.1 The customer shall transfer and forward the production and process data (machine data) of its machine(s) to GARANT to enable GARANT to constantly improve its data-based services. The customer shall grant GARANT the non-exclusive/simple, irrevocable, temporally and spatially unrestricted right to this machine data for all known and unknown types of use. GARANT may collect, store, read, reproduce, analyze, evaluate or process the data, or pass it on in an anonymous form.
Collection, linkage or evaluation of personal data does not take place within the scope of the provision of such machine data. Furthermore, the customer agrees to comply with the applicable data protection regulations at its place of business. The customer shall ensure, in particular, that the corresponding consents from employees or business partners of the customer have been granted in the event that GARANT should come into contact with personal data. Additionally, in the context of remote support the customer is responsible for ensuring that no person is within the recording area or that the person has granted the necessary consent for creating photos or video sequences. Otherwise, Section 2.2 shall apply.
12.2 For the leasing of software, the customer shall be granted the non-exclusive/simple right to utilize the supplied software including its documentation in the object code on a single dedicated use of hardware/device. The software is described in the documentation.
12.2.1 If the GARANT software contains third-party software (including open-source software/OSS), the conditions of the respective manufacturer or the OSS license terms and conditions described in the documentation shall take precedence.
12.2.2 Use of the software on more than one piece of hardware/device, as well as the granting of sublicenses is prohibited. The source code is not transferred. This does not apply to the extent that OSS license conditions intend disclosure of the source code. Copyright notices, serial numbers, as well as other features serving the program identification may under no circumstances be changed or removed. All other rights to the software and the documentation including copies remain with GARANT or the corresponding software supplier. In all other cases, the customer may not duplicate, change, reverse engineer, translate or remove parts of the software without the written consent of GARANT. Sections 21 and 24 of the Copyright Law (URG) remain unaffected.
12.2.3 The permanent (perpetual) transfer of software only takes place for the agreed operational purpose. The resale and forwarding of this software to a third party may only take place together with the hardware provided by GARANT. Third parties also consist of companies associated with the customer. Furthermore, the customer shall ensure that the terms and conditions of use agreed between GARANT and the customer shall also apply for the third party. If the software is passed on, the customer must completely cease to use the software, and also hand over any existing copies to the third party or delete them.
12.2.5 The elimination of a defect which disrupts the function and which must be reproducible is carried out at the discretion of GARANT via patches, bug fixes, updates or the delivery of a new defect-free software version; the general delivery and service conditions shall also apply for such fault rectification and software support measures. The transfer of a new version voids the rights for the previous version. Unless agreed otherwise in 12.2.4, then Sections 6 and 7 shall apply.