These terms and conditions of sale and delivery apply between KeplerWorx and the Customer, who is either specified in the offer for the supply of products/standard software, which these terms are a part of or who makes purchases online at KeplerWorx online store.
The terms and conditions of sale and delivery are acceded to by the Customer’s acceptance of the offer or with the completion of a purchase at KeplerWorx online store and they regulate any relationship between KeplerWorx and the Customer. The conditions also contain terms which apply to any offer being made, regardless of whether the Customer has accepted these terms and conditions of sale and delivery.
2. Scope of the delivery
KeplerWorx shall deliver the units specified in the order confirmation. KeplerWorx has no additional obligations to the Customer.
3. Offer and order confirmation
KeplerWorx’s offer is only valid when it exists in writing, and then only for 30 days, unless a different period is specified in the offer. All offers are made subject to prior sale and an offer shall automatically terminate if a product is or becomes unavailable. If prices or terms change for the delivery in the relationship between KeplerWorx and the manufacturer/importer, KeplerWorx can withdraw the offer throughout the period of acceptance.
The Customer may rely solely on the content in individual offers and/or order confirmation as the basis for the delivery. Information that KeplerWorx has set out in brochures, price lists, advertisements, promotions on the Internet or verbally is not relevant to the assessment of the delivery. Changes in the individual offer or in the order confirmation must be accepted in writing by KeplerWorx.
A final agreement between KeplerWorx and the Customer is only concluded when KeplerWorx has sent written order confirmation to the Customer. The Customer must check the order confirmation upon receipt and inform KeplerWorx promptly in writing of any discrepancies between the Customer’s acceptance and the order confirmation. Otherwise, the information on the order confirmation along with these conditions will constitute the contractual basis for the delivery.
4. Price and payment terms
The prices in offers and order confirmations are stated excluding VAT, installation, maintenance, updates, and insurance, unless otherwise expressly stated in the order confirmation. Changes in exchange rates, taxes, and purchasing costs may result in KeplerWorx adjusting prices in the period between the submission of the offer and submission of the order confirmation.
KeplerWorx is entitled to charge a separate fee for handling, shipment, installation and delivery. KeplerWorx is entitled to invoice when delivery is made unless otherwise stated in the offer. The due date for payments is specified on the individual invoice — terms are ordinafily 14 days if there is credit approval and otherwise net cash. In the event of late payment, KeplerWorx is entitled to charge interest from the due date of 1.75% per commenced month until payment is made.
If the Customer defaults on payment, KeplerWorx is entitled to withhold further deliveries or any portion thereof to the Customer without incurring any liability, regardless of whether the delivery is to be made in accordance with the defaulted contract or another separate agreement. KeplerWorx is also entitled to rescind the defaulted agreement regardless of delivery having taken place. In connection with the termination of the contract, KeplerWorx may revoke and cancel any licenses issued, whereby the Customer’s rights of use cease. Continued use of the software will then constitute a criminal violation of the manufacturer’s intellectual property rights. If KeplerWorx annuls an agreement, KeplerWorx is entitled to compensation.
5. Documentation and guidance
The delivery is accompanied by product descriptions, installation instructions and user guides/manuals (in English) to the extent that such documents are prepared and supplied by the manufacturer as part of the standard product. Documentation can also be supplied as online documentation, integral part of the supplied standard software.
6. Delivery time and place
The delivery time in the order confirmation is approximate. Partial deliveries can be made. Delivery is ex works. Should KeplerWorx arrange shipment to the Customer, then the Customer shall assume all associated expense and risk, and the cost of shipment shall be charged on the invoice. KeplerWorx takes out insurance for the Customer only when this is agreed separately in writing. The delivery method for certain standard products can also be done via download. When an email is sent with a download link to the email address the Customer has given when ordering, delivery is deemed to have been made.
7. Possibility of return of deficient deliveries
The Customer has no right of withdrawal or annulment, unless the manufacturer of the purchased product offers such a right of cancellation or annulment. The cancellation or annulment is then made on the terms that the manufacturer has specified. KeplerWorx may agree in writing to take back items and in any such instance shall set conditions for this on a case by case basis. Normally, KeplerWorx stipulates that the return shipment gives the agreed return number and is accompanied by a copy of the invoice, and the item must be unopened, undamaged, complete and in original packaging. The extent of the subsequent crediting of the product will depend on the product’s resale value. However, KeplerWorx will normally set the return fee at 15% of the invoice amount.
For products that are not normally stocked (obtained goods) or software delivered via download, KeplerWorx never agrees to a return.
If there is significant delay in delivery, see Section 6, leading to considerable inconvenience for the Customer, the Customer is entitled to terminate the agreement by providing written notice, unless the delay is due to force majeure. If the delay giving right to termination concerns only part of the total delivery, the Customer is only entitled to cancel the contract for the delayed part of the delivery.
If the Customer terminates the contract in whole or in part, KeplerWorx is liable for compensation under Section 12.
9. Mora creditorus
If when the time of delivery arrives, the Customer fails to pick up or accept the delivery at the place of delivery, KeplerWorx is entitled to store and insure the delivery at the Buyer’s expense and risk. If the Customer fails to collect or accept the delivery within 30 days after the delivery date, KeplerWorx is entitled to allocate the delivery, in the best possible way, to another party at the Customer’s expense. The Customer is then required to pay the difference between the agreed price plus all costs incurred in connection with storage and the achieved selling price.
10. Intellectual property rights and rights of use
Standard software provided by KeplerWorx is subject to the licensing conditions from the manufacturer that apply to the software. The Customer is obligated to respect such licensing conditions and is deemed to have accepted such in their entirety by commissioning the standard software. The Customer is additionally obligated to respect the current legislation governing the handling of the software, and is aware that it is an offence to use copyright protected material without a license
The Customer agrees that all rights to the sold software accrue to the manufacturer or a third party, and the Customer only acquires the right to use the software in accordance with the licensing conditions applicable to the software. In this, the Customer is aware that these licensing conditions govern all matters concerning errors and omissions with the software, and that the Customer may only bring a claim against the manufacturer in the event of such defects. In the event that there is any inconsistency between these sales and delivery terms and conditions and the licensing conditions for standard software, the licensing conditions shall prevail.
11. Complaints and deficiencies
The Customer’s right to complain against KeplerWorx is limited to physical damage to the delivered products. KeplerWorx has no liability to the Customer in relation to the functionality of the delivered software or defects in such software, see also Section 10. Remedies for such defects are governed by the licensing conditions that apply to the software product in question and the Customer is only entitled to claim against the manufacturer for defects in relation to this. With regard to the right to complain to KeplerWorx, the following conditions also apply:
The absolute complaint period expires 30 days after the date of delivery, and in all cases complaints require that the Customer has fulfilled their normal examination obligations as required by United Arab Emirates law immediately upon delivery.
Complaints against KeplerWorx for defects that were or should have been discovered in this investigation must be made immediately after the examination. Otherwise, the complaint will be dismissed as inadmissible for being submitted out of time.
For defects, which neither were nor should have been discovered in connection with the requirement for examination, the complaint must be made immediately upon the defect being detectable and no later than the expiration of the complaint period.
For defects where the complaint is filed in a timely manner according to the above guidelines, KeplerWorx will, at its own discretion, repair or replace the product within a reasonable time. In this respect, the Customer must provide KeplerWorx with the opportunity to inspect the product at the premises of the Customer or the premises of KeplerWorx at the discretion of KeplerWorx.
If the product is shipped then the Customer shall bear the costs thereof and the Customer shall also assume the risk of transportation. Where a product cannot be repaired or replaced, the Customer may request the purchase price paid be refunded. There can be no requirement in addition to this for any amount paid or claim raised against KeplerWorx.
If the Customer has filed a complaint about a defect or deficiency, and it later transpires that there is no defect or deficiency that can be ascribed to KeplerWorx, the Customer shall reimburse any expenses KeplerWorx may have incurred in the handling of the case, including labour costs, in accordance with the current price list for services, etc.
12. Limitation of Liability
KeplerWorx is not liable for defects in a product where the defect is caused by the use of the products in combination with some other accessory/product that directly or indirectly affects the function of the products, unless such use is foreseen for the product.
KeplerWorx is in no way liable for any damage that the Customer has intentionally or through gross negligence failed to avert, nor is it liable for damage caused intentionally or by gross breach of security measures. KeplerWorx is not liable for any loss or damage when such damage arises from use of the delivered goods in the USA/Canada.
KeplerWorx cannot, under any circumstances, incur a total compensation and/or be required to pay a proportionate reduction in excess of an amount of AED 500,000. This maximum of AED 500,000.00 shall be viewed as a total accumulated maximum for all matters relating to an agreement that may entitle the Customer to compensation and/or a reduction.
Product liability is independently regulated under Section 14 and does not follow the regulation in this Section 12.
13. Consulting services
In the event that KeplerWorx provides consulting services in connection with the sale of software, KeplerWorx does not assume any professional liability for the conditions relating to licensing requirements, configuration, set-up, installation, etc. A separate agreement can be concluded for the calculation of licensing requirements and license management, etc.
14. Product liability
KeplerWorx assumes liability for injury to persons or things caused by the products or services delivered by KeplerWorx, provided that the damage is caused by a defect in the delivered product or service and provided that the delivered product or service is used according to its purpose. KeplerWorx’s product liability does not cover damage to the delivered product itself, nor damage when the delivered product is used for, or in connection with, (1) the operation of aircraft or (11) off shore installations.
Product liability shall not cover financial losses associated with new acquisition, repair, etc. of the supplied defective product, operating losses, business interruption, loss of business profits or other indirect losses as a result of an otherwise covered injury to persons or property.
Neither shall product liability cover damages to or losses relating to things, including buildings, which the supplied defective product is made part of, incorporated into or joined to, or losses relating to things that the supplied defective product is used in the manufacture or processing of.
Product liability covers only damage caused by a delivered product or service when it is used in UAE.
15. Force majeure
Neither party shall be liable for breach of contract if the breach is due to circumstances which the defaulting party at the conclusion of the agreement could not have anticipated, and which may be regarded as force majeure. If a party wishes to invoke force majeure, this must be done immediately after the situation arises when it is or should be realised that the situation has an impact on the delivery. If the force majeure situation postpones the delivery time by more than 8 weeks, both parties are entitled to cancel the agreement by written notice. Neither party may bring a claim against the other party in this connection.
16. Data protection
Customer information will be stored, processed and/or transferred in strict accordance with applicable laws on data protection. KeplerWorx is entitled to transfer customer information through a full or partial business transfer (both assets and share transfer).
This Agreement and any disputes between the Customer and KeplerWorx that may occur or arise out of the agreement are subject to UAE law. Disputes shall be settled in the first instance by the court in Dubai.