General terms and conditions and customer information

Terms of contract within the framework of purchase contracts concluded via the „BAM Webshop“ platform

between the

Bundesanstalt für Materialforschung und -prüfung (BAM) ,
Unter den Eichen 87
12205 Berlin
Germany
Phone: +49 30 8104-0
Fax: +49 30 8104-7-2222
Website: https://www.bam.de
E-Mail: webshop@bam.de

hereinafter the „Supplier“

and the Customer described in Section 2 of the contract

hereinafter the „Customer“.

I. General Terms and Conditions for the Use of the BAM Webshop

The following General Terms and Conditions in the version valid at the time of the order will apply exclusively to the business relationship between the Supplier and the Customer. Deviating general terms and conditions of the customer are not recognised unless the Supplier expressly agrees to their validity in writing.
The sale takes place only to entrepreneurs in the sense of Section 14 BGB (German Civil Code). An entrepreneur is any ordinary person or legal entity or partnership with legal capacity who, when concluding the contract, acts in exercising his commercial or independent professional activity.

The Customer can select products or software (hereinafter: ‘goods’) from the Supplier's product range and collect them in a ‘Basket’ by pressing the button ‘Add to basket’. By pressing the button ‘Buy for €xxx,xx’ the Customer submits a binding application to purchase the goods in the shopping cart. Before sending the order, the Customer can change and view the data at any time. However, the application can only be submitted and transmitted if the customer has accepted these contractual terms and conditions by clicking on the button "I have read the General Terms and Conditions and expressly agree to them" and has thereby included them in his application.
The Supplier will then send the Customer an automatic confirmation of receipt by email, in which the Customer's order is listed again and which the Customer can print out using the ‘Print’ function. The automatic confirmation of receipt merely records that the Supplier has received the Customer's order and does not constitute any acceptance of the application. The contract is not concluded until the Supplier issues a declaration of acceptance, which is sent in a separate email (order confirmation). In this email or in a separate email, but no later than upon delivery of the goods, the text of the contract (consisting of the order, GTC and order confirmation) will be sent to the customer by BAM on a durable medium (email or hardcopy). The contract text will be stored in compliance with data protection.
The Customer also has the option of compiling a shopping cart in the Webshop. The Customer can send this shopping cart as a binding application to the competent departments to E-Mail address: webshop@bam.de using the automated file created there.
The contract will only be concluded by the Supplier's submission of the declaration of acceptance, which will be sent with a separate email (order confirmation). In this email or in a separate email, but no later than upon delivery of the goods, the text of the contract (consisting of order, GTC and order confirmation) will be sent by BAM to the customer on a durable medium (email or hardcopy) (contract confirmation). The contract text will be stored in compliance with data protection.
The contract will be concluded in German or English.

Prospective deadlines and dates are always only binding for the Supplier if they are confirmed in writing or text form. The delivery dates stated during an order process on the Supplier's website do not constitute such confirmation. The Supplier's compliance with its delivery obligation is subject to the timely and proper fulfilment of the Customer's obligations. If a shipment has been agreed, the delivery periods and dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
If the Supplier is in default with a delivery or service or if a delivery or service becomes impossible for the Supplier, regardless of the reason, the Supplier's liability will be limited in accordance with Item 8.
The Supplier will not be liable in the event of impossibility or delay in the fulfilment of delivery obligations if and to the extent that the impossibility or delay is due to circumstances caused by the Customer.
If no copies of the goods selected by the Customer are available at the time of the Customer's order, the Supplier will inform the Customer of this without delay in the order confirmation. If the goods are permanently unavailable, the Supplier will refrain from issuing a declaration of acceptance. In this case, no contract will be concluded.
If the goods selected by the Customer in the order are only temporarily unavailable, the Supplier shall also inform the Customer of this without delay in the order confirmation.
The delivery of the goods takes place worldwide.

The delivered goods remain the Supplier’s property until full payment.

All prices stated on the Supplier's website are exclusive of the applicable statutory value added tax.
The shipment can be carried out at the customer's choice as standard DHL shipment or express DHL shipment. The customer can also order a courier shipment if the customer has his own contract/customer account with the shipping service provider of his choice. In this case, the Supplier needs the Customer’s relevant customer number held by the courier.
The Supplier will bear the costs of standard DHL shipping. If express DHL shipping is commissioned, shipping costs of €20.00 for shipping to destinations within Germany and €50.00 for shipping outside Germany must be borne by the Customer. The shipping costs for courier shipping depend on the respective shipping service provider and are to be borne by the Customer.
No shipping costs will be charged in ‘will collect’ cases.
The risk of accidental loss of or accidental damage to the delivered goods will pass to the Customer at the latest upon handover of the delivery item (whereby the start of the loading process will be decisive) to the forwarding agent, carrier or other third party commissioned to carry out the shipment. This will also apply to each partial delivery if partial deliveries are carried out.

The Customer can make payment by bank transfer, direct debit, credit card, invoice or by Giropay. For deliveries abroad, the payment options are bank transfer, direct debit, credit card and Giropay. For customers outside the EU, Switzerland, Norway and Iceland, payment by direct debit is not possible.
The customer can change the payment method stored in his user account at any time.
The payment of the purchase price is due within 30 days from the conclusion of the contract. If the deadline for payment is calendar-based, the Customer is in default the moment the specified payment date is not met. In this case he has to pay the Supplier interest on arrears for the year in the amount determined by the respective valid version of Section 288(2) German Civil Code (BGB).
The Customer's obligation to pay interest on arrears does not preclude the Supplier from asserting further claims for damage caused by delay.

Claims by the Customer due to material defects will become statute-barred after one year, unless
1. the goods delivered by us are items that have been used for a building according to their normal use and that has caused its defectiveness
2. the defect was fraudulently concealed or is based on an intentional breach of duty by us or our legal representatives or our vicarious agents
3. it concerns claims from a culpable injury to life, body or health
4. it concerns claims based on a guarantee or procurement risk assumed by us
5. it concerns claims for damages (with the restriction of Item 7.2. below)
In the above cases, the statutory limitation period will apply.
Claims for damages based on a refused supplementary performance will be subject to the reduced limitation period of one year if the supplementary performance has not been requested within the period for claims for material defects which has been reduced to one year.
The statutory limitation periods will also apply to claims under Section 445a of the German Civil Code (BGB) if the last contract in the supply chain is a consumer goods contract in terms of Section 474 of the German Civil Code (BGB).
An additional guarantee exists for the goods delivered by the Supplier only if this was expressly given in the order confirmation for the respective item.

Claims by the Customer for damages are excluded. Excluded from this are claims for damages by the Customer arising from injury to life, body or health or from the breach of material contractual obligations (cardinal obligations) as well as liability for other cases of damage based on an intentional or grossly negligent breach of duty by the Supplier, its legal representatives or vicarious agents. Material contractual obligations are those whose fulfilment is necessary to achieve the goal of the contract.
n the event of a breach of material contractual obligations, the Supplier will only be liable for the foreseeable damage typical for the contract if such damage was caused by simple negligence, unless the Customer's claims for damages are based on injury to life, body or health.
The restrictions of Paragraphs 1 and 2 will also apply in favour of the Supplier's legal representatives and vicarious agents if claims are asserted directly against them.
The limitations of liability resulting from Paragraphs 1 and 2 will not apply insofar as the Supplier has fraudulently concealed the defect or has assumed a guarantee for the quality of the item. The same applies insofar as the Supplier and the Customer have reached an agreement on the quality of the item. The provisions of the Product Liability Act remain unaffected.

Offsetting with the Customer’s counterclaims or payment retention due to such claims is only permissible insofar as the counterclaims are undisputed or have been legally established.
Contracts between the Supplier and the Customers will be governed by the laws of the Federal Republic of Germany, the UN Convention on Contracts for the International Sale of Goods is excluded.
Place of jurisdiction for all disputes arising from contractual relationships between the Customer and the Supplier is Berlin.
Even if individual items are legally invalid, the remaining parts of the contract will remain binding. The invalid items will be replaced by statutory provisions if any. However, if this represented an unreasonable hardship for one of the contracting parties, the contract as a whole will become invalid.
These General Terms and Conditions are available in various languages. However, only the German language version is legally binding.

II. Additional conditions for the supply of software (license conditions)

The Supplier provides the ‘BAM list’ application which is a software solution for determining requirements for tanks for dangerous goods transport (hereinafter: ‘The Software’). The Supplier provides The Software to the Customer for use via the Internet as ‘software-as-a-product’.
The Customer can download The Software from the Supplier's Webshop and license it to the desired extent.
The Customer can select a licensing from the Website’s offers to the extent offered and license it in the procedure set forth under Clause I(2).
These license terms include the following components:
1. Annex 1: Software performance specification
2. Annex 2: Open source software record

The Supplier grants the Customer a simple, spatially and temporally unlimited right, subject to the payment of the remuneration, to use The Software for internal company purposes limited to the number of users agreed in the order.
The Software includes the scope of performance agreed in the manual (Annex 1).

The Customer undertakes to use The Software exclusively in accordance with the contract and not to make it accessible to unauthorised third parties.
The Customer is not entitled to use The Software outside of its intended use, in particular not to ‘reverse-engineer’, decompile, disassemble, duplicate or use parts of The Software to create a separate application. Section 69e Copyright Law (UrhG) remains unaffected by this provision.

The respective current version of operating system Microsoft Windows 10 must be available for the use of The Software. In addition, the provision of 150 MB of free storage space is required.
The Customer is responsible for the system requirements. No error-free use is guaranteed for different operating systems.

The Customer acknowledges the Supplier as the sole licensor of The Software and the Supplier’s existing associated copyrights. All rights of the Supplier to which he is entitled based on their sole licensor position will also apply to any rights arising in the future, in particular to rights arising based on extensions to The Software made by the Supplier and provided to the Customer, unless otherwise agreed in writing.
The Customer acknowledges all of the Supplier’s property rights, in particular their trademark, name and patent rights with respect to The Software and all related information, records or the like. The Customer is not entitled to remove, change or otherwise modify copyright or other proprietary information and notices on The Software and related records.

The Customer will exempt the Supplier, including their employees, from any justified third-party claims that any third party may raise against the Supplier in connection with the Supplier's contractual fulfilment action and which are attributable to a wrongful act or omission on the Customer’s part. The exemption will also include any administrative fines from court judgments asserted by third parties, insofar as these are attributable to a wrongful act or omission on the Customer’s part. Reimbursable costs also include the appropriate costs of a legal defence incurred by the Supplier due to defence against such third-party claims. The Supplier will inform the Customer of any legal defence measures to be taken without delay.
The Software delivered or provided by the Supplier is free of any third-party rights that may prevent its use as per the contract.
Insofar as defects of title exist with respect to The Software, the Supplier is
1. entitled, at its own discretion, to either
  1. take legal action against the enforcement of such claims or
  2. modify or replace The Software in such a way that it no longer infringes third-party rights, provided that this does not materially impair the warranted functionality
  and
2. obliged to reimburse the Customer for the necessary costs of a claim incurred due to the enforcement of any legal claims.

The Software will be updated every other year after new dangerous goods regulations have entered into force. If the Customer intends to use the updated version, they must purchase a new license for this purpose.

The Supplier provides support in the event of installation problems and during the use of the programme. No other support services will be provided.
The Supplier provides support only for the current version of The Software.

A standalone application is available for The Software at a normal price and at an update price (the latter only for users of the previous version). The same applies to the network application. A network application must be purchased with at least three licences (for three users), whereby the fee for a network application at the normal price is composed as follows: the first user pays the same price as for the standalone application (normal price), plus two standalone application prices at the update price for the two additional users. One licence key will be sent for the network application, regardless of how many users were included in the application purchase.
The fee for the individual licences is indicated directly on the Webshop.
If the Customer intends to use The Software in excess of the agreed number of users, they must notify the Supplier thereof in writing without undue delay. The Customer will in any case be obliged to compensate the Supplier for any use in excess of the agreed number of users in accordance with the fee agreed in the order, further claims from the Supplier will remain unaffected.

The current performance specification can be found here:
https://tes.bam.de/TES/Navigation/DE/Recht-und-Regelwerke/BAM-Liste/bam-liste.html

Here you can find a copy of all licenses.