Terms & Conditions (AGB)

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1. Scope of application – B2B Business, Definitions

(1) These General Terms and Conditions of Sale (“T&C”) apply exclusively to entrepreneurs within the meaning of section 14 BGB (German Civil Code), legal entities under public law or special funds under public law.

(2) Sales to consumers within the meaning of § 13 BGB (German Civil Code) will not be conducting. By placing an order, the customer confirms that they are an entrepreneur within the meaning of section 14 BGB.

(3) By placing an order, the customer agrees to these terms and conditions.

(4) Deviating or supplementary terms and conditions of the customer shall not become part of the contract, even if 2D does not expressly object to them.

(5) Our privacy policy also governs the use of our website. Please read the privacy policy carefully, as it contains important information about our privacy practices. The privacy policy is available at https://2d-datarecording.com/terms-conditions-agb/ and can be printed as a PDF file.

 

2. Formation of the Contract; Order of Precedence; Entire Agreement

(1) The 2D website serves solely for informational purposes. Any information shown does not constitute an offer to contract (invitation ad offerendum).

The same applies to information communicated in catalogs, price lists, brochures, advertisements at trade fair stands, circulars, advertising mailings, or other media (information material).

(2) Any offers made by 2D in writing or via phone are subject to change and non-binding and will be valid for a maximum of 30 days after being communicated by 2D.

(3) A contract shall only come into effect upon individual written agreements between the parties or written order confirmation or delivery by 2D.

(4) Order of precedence of the components of the contract:
a. Individual written agreement,
b. Written Order confirmation 2D
c. These General Terms and Conditions
d. Statutory provisions

(5) Unless otherwise agreed in accordance with 2. (3) a, b, these terms and conditions contain all agreements between the parties with regard to the customer’s specific order, on which they are based. Pre-contractual statements or information provided by 2D are non-binding unless they have been expressly confirmed in writing.

(6) 2D may use authorized partners or contractors to fulfill its obligations.

3. Subject matter of the contract; area of application; system responsibility

(1) Unless expressly stated otherwise in writing, 2D’s products are designed for the use in a professional motorsport environment and for related development applications.

(2) Any use outside the agreed scope of application, in particular in safety-critical areas (e.g., public road traffic, aerospace, defense projects etc.), requires an express written agreement with 2D in which 2D confirms that the product is suitable for the intended use.

(3) Unless 2D is expressly commissioned as a system integrator, 2D assumes no responsibility for the overall function of a system into which the products are integrated.

(4) With consideration of the aforementioned, the customer is solely responsible for the selection, integration, configuration, and intended use of the products.

 

4. Prices; Terms of Payment; Offsetting

(1) Prices are net EXW (Incoterms® 2020) plus statutory sales tax and shipment costs and ancillary costs.

(2) Despite our best efforts, products may occasionally be labeled with the wrong price in an offer to the customer. 2D checks prices when processing customer orders. If a product is labeled with an incorrect price at the time of ordering and the correct price is higher than the price stated, 2D will contact the customer before shipping the goods to ask whether they wish to purchase the product at the correct price or cancel the order. If the correct price at the time of ordering a product is lower than the price quoted by 2D, 2D will charge the lower amount and ship the product to the customer.

(3) Unless otherwise communicated by 2D, invoicing shall be as follows:
– Hardware & Software: upon delivery of the goods
– Software license renewals: upon order
– Consulting and support services: upon completion of the service
– Training services: payment in full after reception of an invoice no later than 14 days prior to the provision of the service

(4) Payment terms: 30 days net, unless otherwise agreed in writing.

(5) All payments under this Agreement shall be made in the currency agreed to in writing by 2D and shall be remitted by the customer via electronic transfer to a bank account designated by 2D in its sole discretion and notified to the customer.

(6) Offsetting is possible for the customer only with undisputed or legally established claims.

(7) If the customer is in default of payment, all other invoices shall become immediately due and 2D is entitled to suspend agreed or future shipment of goods or provision of services or to provide them only against advance payment. 2D may, at its discretion, charge interest on any amount that is owed to 2D which is not paid when due at the rate of 1% per month or, if more, the highest rate permitted under applicable law.

(8) Any credit terms extended to the customer are conditional on 2D receiving copies of the customer’s quarterly and annual financial statements promptly and on 2D’s assessment of the customer’s creditworthiness. Credit terms and credit limits may be changed at 2D’s sole discretion with 14 calendar days written notice to the customer.

(9) 2D reserves the right to adjust prices after order confirmation in the event of changes to material, licensing, or production costs.

5. Retention of title

(1) Unless otherwise agreed, delivered goods (software, hardware, and license keys) remain the property of 2D until all claims have been settled in full; extended and prolonged retention of title applies to the extent permitted by law.

(2) Claims arising from resale shall be deemed assigned to 2D to the extent permitted by law.

(3) Any processing shall be carried out for 2D as the manufacturer within the meaning of § 950 BGB (German Civil Code).

(4) If the customer fails to pay for any Products sold to customer by 2D on the due date or commits any act of bankruptcy or if any resolution or petition to wind up the customer shall be passed, 2D may recover possession from the customer of the products for which full payment has not been received from the customer and for that purpose the customer agrees that 2D or its agents may enter upon any land or building upon which the products are situated.

 

6. Delivery and Provision of Service; transfer of risk, inspection and notification obligations

(1) The transfer of risk takes place upon handover to the carrier even if 2D will deliver support services on-site after delivery.

(2) Partial deliveries are permitted.

(3) Delivery dates are only binding if expressly confirmed as binding by 2D.

(4) If delivery is delayed due to force majeure or circumstances caused by the customer, delivery times are extended accordingly without 2D being responsible for this.

(5) If a customer fails to accept a shipment and 2D is not liable for this, 2D may return the goods to 2D and / or store the goods at the customer’s expense and risk; in such cases, delivery shall be deemed completed.

(6) Section 377 of the German Commercial Code (HGB) applies. Obvious defects must be reported in writing without delay at delivery, otherwise deliveries shall be deemed to have been approved.

(7) Consulting, development, or training services are considered accepted once the agreed scope has been delivered or the customer has started productive use without notifying 2D of any malfunctions or defects.

(8) Any defects must be reported immediately in writing. Minor deviations do not justify rejection of acceptance by the customer.

7. Warranty

(1) Subsequent performance (Nacherfüllung) shall be at the discretion of 2D.

(2) Claims shall become time-barred within 12 months of the transfer of risk.

(3) Warranty rights in the event of improper use, modification, integration, or unsuitable operating conditions are excluded to the extent permitted by law.

 

8. Performance parameters; tolerances, software, updates, compatibility

(1) Technical performance data applies exclusively under defined test conditions.

(2) Tolerances customary in the industry or due to physical conditions do not constitute a defect.

(3) Simulation or reference values do not guarantee identical results in racing or test operation.

(4) Changes in performance require written agreement; additional expenses will be remunerated separately.

(5) Software is provided in its current version, unless otherwise agreed in the contract. While 2D provides technical support, software updates, and installation assistance to the best of its ability, the scope of services is defined by the current service offering. Unless otherwise agreed in writing, no guaranteed response times or specific outcomes are owed.

(6) 2D is entitled to further develop software and does not guarantee compatibility with third-party components, unless expressly agreed.

(7) 2D does not guarantee data backups and IT security for the customer in connection with the use of 2D software and hardware. This is the responsibility of the customer.

(8) The customer agrees that 2D shall own the copyright in all translations that are made by or on behalf of the customer of user manuals for the products and software strings in the products. Voice files paid for by the customer and related to the products in any way whatsoever shall be owned by the customer, provided, however, that the customer hereby grants an irrevocable, non-exclusive, royalty free, perpetual, worldwide license to 2D and its affiliated companies within the meaning of section 15 AktG to use, reproduce, adapt, modify, translate, publish, display and distribute such voice files.

 

9. Liability and Indemnification, Insurance obligation

(1) In cases of simple negligence, 2D shall only be liable for breaches of material contractual obligations and limited to foreseeable damage typical for this type of contract. Total liability per calendar year shall be aggregated to the lower of: (a) 100% of the net order value of the contract concerned or (b) EUR 1,000,000.

(2) To the extent permitted by law, liability for lost profits or loss of competition, sponsorship damages, production delays, indirect damages, and data loss is excluded, whereby liability in each case of data loss is limited to the cost of restoration with proper data backup, as well as for damage resulting from racing-related stress or wear and tear, racing accidents due to improper use of the products, or third-party negligence.

(3) Neither party shall be liable for the non-performance of contractual obligations caused by events beyond its reasonable control, including but not limited to natural disasters, war, terrorism, pandemics, or governmental restrictions (Force Majeure). In any such event, each party must promptly notify the other of the occurrence and cessation of such events. To the extent that any Force Majeure event is the sole reason for a party not being able to perform its contractual obligations, delivery and performance deadlines shall be extended by the duration of the disruption plus a reasonable recovery period. If the Force Majeure event lasts longer than 90 days, the parties will be able to terminate any affected agreement in writing.

(4) The limitations of liability apply to all claims arising from or in connection with the business relationship, regardless of the legal basis. They also apply to indemnification claims and in favor of organs, employees, and vicarious agents of 2D and affiliated companies within the meaning of Section 15 of the German Stock Corporation Act (AktG).

(5) The limitations of liability do not apply to damages in connection with injury to life, limb, or health, or under the Product Liability Act, insofar as a limitation is not permitted by law.

(6) 2D assumes that all information provided by the customer within the scope of the contractual relationship is free from third-party rights and can be used by 2D without restriction to fulfill its contractual obligations toward the customer. The customer therefore indemnifies 2D with regard to third-party rights to all information, drawings, sketches, or other product-related information that they have provided to 2D within the scope of the contractual relationship.

(7) The customer shall also indemnify 2D to the extent legally possible with regard to any use of 2D’s products, software, and services that is in breach of contract; this applies in particular to export control violations and the resale of products and services that contain 2D software or hardware or that have been manufactured by the customer on the basis of expertise provided by 2D.

(8) In the event any violations of the provisions of any agreements with 2D, statutory provisions, and other official orders and requirements, the customer shall indemnify 2D against any liability without being requested to do so, inform 2D of any claims asserted by third parties or authorities, and reimburse 2D for the legal defense costs which 2D may reasonably incur for legal defense due to the customer’s misconduct, and shall support 2D in the best possible way in its legal defense.

(9) The limitations of liability and indemnification apply to all claims arising from or in connection with the business relationship, regardless of the legal basis. They also apply to indemnification claims and in favor of organs, employees, and vicarious agents of 2D and affiliated companies within the meaning of § 15 AktG (German Stock Corporation Act).

(10) The customer guarantees 2D that it maintains adequate, standard commercial liability insurance, including product liability coverage in the motorsport sector, and will provide appropriate evidence upon request.

10. Confidentiality And Proprietary Rights

(1) All intellectual property rights to 2D products, developments,
documentation, and related materials remain with 2D. Upon delivery, the customer receives a non-exclusive right to use the software for its intended purpose unless otherwise agreed in writing by the parties.

(2) Reverse engineering, decompiling, disassembling, or modifying the software is strictly prohibited unless expressly permitted by law.

(3) All trademarks, copyrights, and proprietary materials remain the property of 2D. Drawings, plans, and documentation may not be copied or shared with third parties without written approval of 2D prior to any such sharing.

(4) The customer agrees that, except as required by law or court order and except for disclosure to the customer’s lawyers, accountants and lenders, it will keep all information regarding the terms of the business agreement with 2D and 2D’s products and services confidential at all times. The customer further acknowledges that the Confidential Information (as defined below) comprises valuable trade secrets and is proprietary to 2D and its affiliated companies. The customer shall hold the Confidential Information in strict confidence and shall not disclose the same to any person except as required to perform his obligations under the agreement with 2D. The foregoing obligation shall not apply to any information that becomes public through no fault of the customer. As used herein the term Confidential Information means this Agreement, all know-how, designs, drawings, pricing information, specifications and other information, whether or not reduced to writing, relating to the design, manufacture, use and service of any products of 2D and its affiliated companies (including but not limited to the products) as well as any other information relating to the business of 2D that may be divulged to the customer that is not generally known to the public.

(5) The customer shall not use the Confidential Information for any purpose other than to perform its obligations under the agreement with 2D. The customer shall not copy or reverse engineer any products.

(6) The provisions of any separate Non-Disclosure Agreement signed between the Parties shall remain in full force and effect.

(7) Trademarks:
All 2D Products sold by the customer shall bear the trademarks of 2D and its affiliated companies unless otherwise agreed in writing. The customer shall not remove, conceal or alter the trademarks without the prior written consent of 2D. The customer acknowledges and agrees that unless provided in writing by 2D he has no rights in the trademarks. The customer shall not use the trademarks as part of its corporate or business name unless 2D allows this use in writing. The customer shall not apply to register any of the trademarks or any marks or names which closely resembling them.

(8) The customer shall not register any domain names which incorporate the Trademark or any marks which closely resemble the trademarks unless authorised in writing by 2D.

(9) 2D and its affiliated companies are the current owners and/or licensees of all rights in and to the trademarks of 2D. The customer acknowledges that it does not have any, nor will it acquire any, proprietary interest whatsoever in the trademarks and that any rights of the customer to use the Trademarks are derived solely from the execution of any agreement in which 2D allows the customer to use the trademarks in writing.

(10) Unauthorised use of the trademarks by the customer shall constitute a breach of any agreement with 2D and an infringement of the rights of 2D in and to the trademarks.

(11) The customer shall not incorporate any trademark as part of any corporate or entity name or with any prefix, suffix or other modifying trademarks, logos, words, terms, designs or symbols, or in any modified form, or use any trademark in connection with the sale of any unauthorised products or services or in any other manner not expressly authorised in writing by 2D. The customer shall display the trademarks of 2D and give notices of trademark registrations and obtain such licenses, permits and authorizations relating thereto as may be necessary or advisable under applicable laws.

(12) All domain names that incorporate, are identical to or similar to the trademarks shall be owned by or transferred to 2D.

11. Termination rights

(1) 2D may terminate any agreement based on this T&Cs with immediate effect by serving notice in writing on the customer if:
a) the customer fails to pay 2D in accordance with the applicable payment terms set out in this T&C;
b) 2D disposes of any part of its business that relates to any of the products;
c) the customer breaches any of its obligations under any clause of this T&C;
d) the customer purports to assign its rights and obligations in any agreement with 2D based on this T&C; or
e) if any kind of export restriction or export license is required by any public authority to send shipments to the customer

(2) 2D may terminate this any agreement based on this T&C on three (3) months’ notice to the other Party at any time for no reason.

(3) In case of any termination all outstanding invoices shall become immediately payable by the customer and the customer shall (return to 2D all Confidential Information which is then in the Purchaser’s possession or control.

(4) 2D shall have no obligation to repurchase or to credit the customer for any 2D products in the customer’s inventory which are unsold at the date of termination. 2D may, at its option, repurchase all or a portion of the 2D products in the customer’s inventory at the then current retail prices or at the prices which the customer paid to 2D in respect of the relevant products, whichever is the lower, less the cost of repairing or reconditioning such products. In the event of such repurchase, the customer shall promptly pack box or crate, in a manner acceptable to 2D, any products which 2D has elected to repurchase. Such repurchase shall not relieve the customer of its obligation to pay 2D any outstanding balance due to 2D after credit is applied for any repurchase of product.

(5) Unless otherwise agreed to in writing by the Parties, termination of the agreement based on these T&C by either party automatically cancels any unshipped purchase orders.

(6) The Parties mutually acknowledge that in entering into an agreement based on this T&C and in the course of its performance, they have incurred expenses both in terms of capital outlay and day to day operational expenses for which they have been adequately compensated by the mutual benefits financial and otherwise which each Party has derived from any such agreement. Accordingly, the Parties agree that notwithstanding any rule of law or any dictates of custom and practice whether applicable, no termination of any such agreeement made in accordance with its terms shall be considered by either Party to be wrongful, abusive or inconvenient and neither Party shall as a consequence of such termination make any claim against the other for compensation for loss of any rights, loss of goodwill, loss of future profits or any similar loss.

 

12. Compliance with applicable laws

The parties will comply with any applicable laws, in particular regarding competition law, anti-bribery legislation, data protection and export controls. The customer understands that 2D products and technical data may be subject to German and international export control laws. The customer agrees to comply with all such regulations and to obtain any necessary permits at their own responsibility.
Any violation of applicable laws by the customer will result in 2D being able to terminate any agreement with the customer effectively immediately.

 

13. Governing Law

This Agreement shall be governed by and construed in accordance with the laws of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). The exclusive place of jurisdiction for all disputes is Karlsruhe, Germany.

 

14. Notices

All notices required to be given or information supplied by either of the Parties to the other pursuant to the provisions of these T&C must be in writing and addressed to the address of the applicable Party’s place of business.

15. Miscellaneous

(1) Unless otherwise specifically agreed by the Parties in a signed written agreement, the failure of 2D at any time to require performance by the customer of any of the provisions hereof shall not operate as a waiver of 2D’s right to require strict performance of the same or other provisions thereafter.

(2) If any part of these T&C becomes invalid, illegal or unenforceable, the Parties shall negotiate in good faith in order to agree the terms of a mutually satisfactory provision to be substituted for the invalid, illegal or unenforceable provision which as nearly as possible validly gives effect to their intentions as expressed 180 calendar days of commencement of those negotiations shall result in automatic termination of any agreement based on these T&C. The obligations of the Parties under any invalid, illegal or unenforceable provision of these T&C shall be suspended during such a negotiation.

(3) This contract contains all agreements made between the parties regarding the subject matter of the contract. There are no verbal side agreements.

(4) The provider reserves the right to make changes to the website, rules, and conditions, including these terms and conditions of sale, at any time.

 

 

2D Debus & Diebold Meßsysteme GmbH Bannwaldallee 60 · 76185 Karlsruhe · Germany www.2d-datarecording.com

 

 

 

 

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