Terms and Conditions

General terms and conditions
of
Voleatech GmbH
Date: March 2020

A.
Terms and Conditions

§ 1 Scope, no Consumers

1. These General Terms and Conditions of Delivery and Fulfillment apply to all our fields of activity towards Companies. Company is a natural or legal person or a partnership with legal rights which, at the time of conclusion of the contract, acts in the exercise of its commercial or independent professional activity. These General Terms and Conditions of Delivery and Fulfillment apply in particular to the sale and supply of hardware and software as well as to Support requests.

2. These General Terms and Conditions of Delivery and Fulfillment apply exclusively in our relationship with the customer. They also apply to all future transactions, as well as to all business contacts with the customer, such as the commencement of contract negotiations or the initiation of a contract, even if they are not expressly agreed to again or if expressly referred to them again. The validity of terms and conditions or purchase conditions of the customer is expressly rejected.

3. If, in individual cases, obligations with persons or companies that are not to become parties themselves are also to be established, the limitations of liability in these General Terms and Conditions of Supply and Fulfillment shall also apply to them, insofar as these general terms and conditions of delivery and fulfillment towards the third parties were included in the establishment of the debt relationship. This is particularly the case where the third parties have become aware of these General Terms and Conditions of Delivery and Fulfillment when establishing the debt or have already had them.

4. The acceptance of our services and deliveries by the customer shall be deemed to be a recognition of the validity of these General Terms and Conditions of Delivery and Fulfillment.

§ 2 Conclusion of contracts and information in e-commerce, no right of withdrawal

1. The presentation of the products in our online shop does not constitute a legally binding offer, but a non-binding online catalogue. By clicking on the “order for payment” button, you place a binding order for the goods contained in the shopping cart. Confirmation of receipt of your order will be made immediately by e-mail. With this e-mail confirmation, we do not accept your order yet. Acceptance and thus confirmation of the contract shall be made with a separate e-mail containing a corresponding declaration, a shipping confirmation or a request for payment.

2. The contract text will not be stored by us after the conclusion of the contract accessible to the customer. However, the text of the contract will be sent to the customer by e-mail as part of the confirmation of receipt.

3. The customer can detect and correct input errors before the final submission of an offer by checking the offer on a separate confirmation page.

4. The language available for the conclusion of the contract is German.

5. We have not submitted to any code of conduct.

6. There is no right of withdrawal as a consumer or because of an order in e-commerce.

§ 3 Confidentiality

1. The customer and we (“the parties”) agree, during the term of the contract, to provide all information that is made available to them in connection with the Contract, which is described as confidential or, due to other circumstances, as a business or trade secrets are recognizable, to keep secret and not to record them, to pass them on or to transfer them to third parties or to exploit them in any way, unless expressly authorized in writing or required to achieve the purpose of the contract. This obligation of confidentiality shall remain in force for a further five years after the complete fulfillment or termination of the order.

2. Excluded from this are the information
– which were already known to a party prior to the commencement of the contract negotiations or which are not disclosed by third parties as non-confidential, provided that they do not in turn violate confidentiality obligations,
– which the parties have developed independently of each other,
– which are or will be publicly known through no fault of the parties, or
– which must be disclosed on the basis of legal obligations or official or judicial orders.
In the latter case, the disclosing party shall inform the other party without delay prior to disclosure. Further legal obligations for confidentiality remain unaffected.

§ 4 Place of fulfillment, place of jurisdiction, applicable law, data processing, salvatory clause

1. The place of fulfillment and exclusive place of jurisdiction for all disputes arising between the parties arising from the contractual relationship is our Place of Business, insofar as the customer is a merchant, a legal entity under public law or a special fund under public law or the customer has no general place of jurisdiction in the Federal Republic of Germany or moves his place of jurisdiction abroad. As an exception, we are also entitled to use the customer at his general place of jurisdiction.
A merchant is any merchant who is registered in the commercial register or who operates a commercial business and needs a business set up in a commercial manner. The customer has his general place of jurisdiction abroad if he has his registered office abroad.

2. Should a provision in these General Terms and Conditions of Delivery and Fulfillment or a provision within the framework of other agreements be or become ineffective, this shall not affect the validity of all other provisions or agreements.

3. German law applies to contractual and other legal relations with our customers to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

B.
Special conditions for deliveries

§ 1 Scope

The following special conditions apply in addition to the General Terms and Conditions under A. for all contracts with the customer for the supply of hardware or software.

§ 2 Scope of delivery and fulfillment, service deadlines

1. For the scope of our delivery or service, our offer or order confirmation in text or written form is decisive. Ancillary agreements and changes require our written confirmation. If our offer or order confirmation was based on information provided by the customer (data, figures, illustrations, drawings, system requirements, etc.), our offer is only binding if this information was correct. If it turns out after the conclusion of the contract that the order cannot be carried out according to the customer’s specifications, we are entitled to withdraw from the contract if and insofar as the customer is not prepared to accept the replacement solution proposed by us and to assume any additional costs actually incurred.

2. The transfer of ownership and the transfer of the object of purchase is due. The mountin, installation or configuration of the purchased item is not due, unless this is expressly agreed.

3. The customer shall ensure that the manufacturer’s requirements for the hardware and software environment described in the application documentation are met by the customer.

4. We are entitled to partial services for all deliveries and services to a reasonable extent.

5. We are entitled to use subcontractors to fulfil our contractual obligations.

6. As soon as we become aware of the risk of the customer’s inability to solvency, we are entitled to provide goods deliveries and services only against advance payment or security. Without prejudice, our right to withdraw from individual contracts already concluded if and to the extent that the customer does not provide a prepayment or security within a reasonable grace period remains.

7. Delivery and fulfillment deadlines and dates always represent the best possible information but are generally non-binding. The beginning of the delivery period as well as the observance of delivery dates presupposes that the customer performs his cooperation actions in due time and properly, that he provides all documents to be provided and makes any agreed advance payments.

8. In the event of force majeure or other circumstances through no fault of our own, we shall not be in default. In this case, we are entitled to withdraw from the contract even if we are already in default. In particular, we shall not be in default in the event of delivery delays, insofar as these have been caused by incorrect or incorrect delivery by our suppliers, for which we are not responsible. In the event of obstacles of a temporary duration, the delivery or fulfillment periods shall be extended, or the delivery or fulfillment dates shall be postponed by the period of the hindrance plus a reasonable start-up period.

9. If we are contractually obliged to provide advance payments, we may refuse the service at our disposal if, after the conclusion of the contract, it becomes apparent that our claim to the consideration is jeopardized by the customer’s inability to solvency. This is particularly the case if the consideration to which we are entitled is endangered due to the client’s poor financial situation or if other obstacles to fulfillment are present such as: export or import bans, war events, insolvency of suppliers or illness-related failures of necessary employees.

§ 3 Transfer of risk in case of dispatch, transport insurance

1. The risk of loss or depreciation of the goods (hardware or software plus the supplied documents) passes to the customer upon handover of the goods for dispatch, even if partial deliveries are made. If the dispatch is delayed for reasons that are in the space of the customer, the risk already passes to the customer with the notification of readiness for dispatch.

2. Transport insurance for goods to be shipped is only taken out upon explicit request. The transport insurance is then taken out in the name and on behalf of the customer.

§ 4 Prices

1. Our prices are net prices and, unless otherwise agreed in writing, are always “ex works” for deliveries (EXW Incoterms 2020). In the case of services, the prices relate to the fulfillment at the agreed place of fulfillment. When invoicing, sales tax is added in its respective statutory amount.

§ 5 Payment

1. If nothing else has been contractually agreed to, our claims shall be due in advance.

2. Without an explicit agreement, the customer is not entitled to make deductions.

3. Our compensation claims can only be offset against undisputed or legally established claims. The same applies to the exercise of a right of retention. The customer is only entitled to exercise a right of retention if it is based on the same contractual relationship.

4. The assignment of claims against us by the customer requires our prior approval, which we will refuse only for good cause.

§ 6 Ownership

1. Until full payment of all our current and future claims arising from the concluded contract and an ongoing business relationship (secured claims), we keep the title to delivered goods.

2. The goods subject to retention of title may not be pledged to third parties or transferred to security before full payment of the secured claims. The customer must notify us immediately in text or written form if and to the extent that third parties access the goods belonging to us.

3. The customer is entitled to resell and/or process the goods subject to retention of title in the proper course of business. In this case, the following provisions shall apply in addition.

3.1. The retention of title extends to the products resulting from the processing, mixing or combination of our goods at their full value, whereby we are considered as a manufacturer. If, in the case of processing, mixing or connection with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or connected goods. In addition, the same applies to the resulting product as to the goods delivered under reservation of title.

3.2. The customer assigns to us the claims against third parties arising from the resale of the goods or the product already in total or in the amount of our possible co-ownership share in accordance with the preceding paragraph for security. We accept the assignment. The obligations of the customer referred to in point 2 of this clause above also apply in view of the assigned claims.

3.3. In addition to us, the customer remains authorized to collect the claim. We obligate us not to collect the receivables as long as the customer meets his payment obligations towards us, does not default, there is no application to open insolvency proceedings, and there is no other defect in his fulfillment. If this is the case, however, we can request that the customer inform us of the assigned claims and their debtors, provide all the information necessary for collection, hand over the associated documents and notify the debtors (third parties) of the assignment.

3.4. If the realizable value of the collateral exceeds our claims by more than 10%, we will release securities at our discretion at the customer’s request.

4. The customer must treat the reserved goods with care. At our request, the customer must insure the reserved goods sufficiently at the new value against fire, water and theft damage at our request. If maintenance and inspection work is required, the customer must carry it out on time at his own expense.

5. If the effectiveness of this reservation of title from its registration, e.g. in public registers in the customer’s country, we are entitled and authorized by the customer to make this registration at the customer’s expense. The customer is obliged to provide all cooperation services required for this registration free of charge.

§ 7 Liability for defects and general liability

1. The limitation period for claims due to defects in our deliveries and services is one year from the statutory commencement of the statute of limitations. After the end of this year, we may in particular refuse subsequent fulfillment without the customer making any claims against us for reduction, withdrawal or damages. This limitation period reduction does not apply to claims for damages other than those for denied subsequent fulfillment and generally not to claims in the event of fraudulent concealment of the defect. The statutory limitation periods in accordance with Section 445b of the German Civil Code apply to claims for recourse under Section 445a of the German Civil Code (BGB).

2. Claims of the customer for subsequent fulfillment due to defects of the service or delivery to be provided by us exist in accordance with the following provisions:

2.1. If the delivered item is defective, we can first choose whether we perform supplementary fulfillment by remedying the defect (repair) or by delivering a defect-free item (replacement delivery). The right to refuse the chosen type of supplementary fulfillment under the statutory conditions remains unaffected.

2.2. We are entitled to make the subsequent fulfillment owed dependent on the customer paying the purchase price due. However, the customer is entitled to retain a portion of the purchase price that is proportionate to the defect.

2.3. The customer must give us the time and opportunity required for the subsequent fulfillment owed, in particular to hand over the objected goods for inspection purposes. In the event of a replacement delivery, the customer shall return the defective item to us in accordance with the statutory provisions.

2.4. We shall bear the expenses required for the purpose of subsequent fulfillment, in particular transport, travel, labor and material costs, if there is actually a defect.

2.4.1. The statutory provisions of Section 439 (3) of the German Civil Code (BGB) apply.

2.4.2. The customer bears the expenses for rectification or subsequent fulfillment, which arise from the fact that the purchased item has been moved to a place other than the customer’s residence or commercial office after delivery.

2.4.3. If a request for rectification of defects by the customer turns out to be unjustified, we can demand compensation from the customer for the resulting costs.

3. If the customer is a merchant within the meaning of the Commercial Code, the following additional applies:
The customer’s claims for defects, in particular the claims for subsequent fulfillment, withdrawal from the contract, reduction and damages, presuppose that the customer has fulfilled his statutory obligations to investigate and complain about (Section 377, 381 of the German Commercial Code). If there is a defect in the examination or later, it shall be reported to us immediately in text or written form. The notification shall be deemed to be immediate if it is made within fourteen days after the defect has been discovered, whereby the timely dispatch of the notification is sufficient to meet the deadline. Irrespective of this obligation to investigate and complain, the customer must notify obvious defects (including false and under-delivery) in text or written form within fourteen days from delivery, whereby the timely dispatch of the notification is sufficient to meet the deadline. If the customer fails to properly investigate and/or report defects, our liability for the defect that has not been reported is excluded. This does not apply if we have fraudulently concealed the defect.
A merchant is any merchant who is registered in the commercial register or who operates a commercial business and needs a business set up in a commercial manner.

4. We only have to pay damages

4.1. for damages caused by
– intentional or grossly negligent breach of duty on our part, or
– intentional or grossly negligent breach by one of our legal representatives, officers or vicarious agents
are based on obligations which are not essential contractual obligations (cardinal obligations) and are not principal or ancillary obligations in connection with defects of our deliveries or services.

4.2. for damages that are based on the intentional or negligent breach of essential contractual obligations (cardinal obligations) on our part, one of our legal representatives, executives or vicarious agents.

4.3. Essential contractual obligations (cardinal obligations) within the meaning of the preceding no. 4.1 and 4.2 are obligations, the fulfilment of which makes the proper execution of the contract possible and on whose compliance the customer regularly relies.

4.4. Furthermore, we are liable for damages due to negligent or intentional breach of obligations in connection with defects of our delivery or fulfillment (supplementary fulfillment or ancillary obligations) and

4.5. for damages that fall within the scope of a warranty (guarantee) expressly provided by us or a quality or durability guarantee.

5. In the case of a simple-negligent breach of an essential contractual obligation, the liability of the amount shall be limited to the damage that is typically expected when the contract is concluded upon the application of due diligence for us.

6. Claims for damages by the customer in the event of a simple-negligent breach of an essential contractual obligation shall become statute-barred one year from the commencement of the statutory limitation period. This does not apply to damage resulting from injury to life, body, or health.

7. Claims for damages against us due to legally binding liability, for example under the Product Liability Act, as well as from injury to life, body, or health, remain unaffected by the above provisions of this clause and exist to a statutory extent within the statutory time limits.

8. The rights of the customer pursuant to Sections 445a, 445b and 478 of the German Civil Code remain unaffected in accordance with the following regulations:

8.1. The customer bears the burden of proof that the expenses for subsequent fulfillment were necessary and that he could not have refused the subsequent fulfillment to his buyer in accordance with Section 439 (4) of the German Civil Code (BGB) or could have fulfilled it in a more cost-effective manner.

8.2. The claim arising from Section 445a (1) of the German Civil Code (BGB) is time-barred in accordance with Section 445b (1) of the German Civil Code (BGB) in two years from delivery by us to the customer. This period also applies if a longer period would apply under Section 438 of the German Civil Code (BGB).

8.3. The limitation period for the claims of the customer against us as a result of the defect of a newly manufactured item determined in Sections 437 and 445a (1) of the German Civil Code (BGB) shall occur at the earliest two months after the date on which the customer has fulfilled the claims of his buyer, provided that the customer to whose buyer the claims were not yet time-barred. This expiry of the procedure ends no later than five years after the date on which we delivered the item to the customer.

9. Should third parties be commissioned or involved in the initiation or settlement of the contractual relationship between the parties, the above-mentioned warranty and liability limitations also apply to the third parties.

§ 8 Supplementary provisions for the warranty, in addition to Troubleshooting solution

1. Insofar as we provide a workaround solution, the service provided shall not be deemed to be defective; in this context, we are also entitled to make changes to the configuration of the hardware or software if and to the extent that the operational capability of the hardware or software is not affected individually or as a whole.

2. If we are not able to rectify the defect or to resupply it without errors, we will show the customer Workaround options. Insofar as these are reasonable for the customer, the Workaround options shall be deemed to be supplementary fulfillment. Workarounds are temporary bridging of an error or malfunction, especially in the case of software without interfering with the source code.

3. We also comply with our obligation to rectify the situation by providing updates for download with an automatic installation routine and by offering the customer telephone support to resolve any installation problems that may arise.

4. Further warranty or warranty claims of the customer due to the underlying contractual relationships with device manufacturers and suppliers remain unaffected.

C.
Special conditions for diagnostic (Support)

§ 1 Scope

The following special conditions apply in addition to the general conditions under A. for all contracts with the customer for the assistance with support of the network-capable devices supplied by us. The following regulations do not apply to services that we provide within the scope of the statutory warranty for the goods delivered by us.

§ 2 Specifications

Support is solely a matter of assistance in diagnosing errors and, where applicable, carrying out configurations or administrative activities on the software we supply. A success, such as the restoration of the system or the removal of a failure that is obstructing or interrupting operations, is expressly not due. Support is provided exclusively by remote diagnostics via remote (hereinafter also “remote maintenance”). The customer has the technical requirements for this remote maintenance in accordance with C.§ 3. We only accept support requests by e-mail to the e-mail address (support [at] voleatech.de).

§ 3 Fulfillment requirement, place of fulfillment, remote diagnostics, customer participation

1. Remote diagnostics are services provided by the software Teamviewer and suitable communication services from a remote location and for which the customer provides the necessary infrastructure facilities (wires, internet connection, etc.). A remote diagnostic can therefore only be carried out if the customer provides the technical prerequisites for this. The technical requirements are given to the customer in individual cases. Unless otherwise agreed, the customer must ensure unhindered network access to the device (e.g. no obstructive firewall settings) as well as communicate the IP address of the device and the access data.

2. We are only obliged to provide services to devices that have been supplied by us, on which the current version of the software is installed, and which are accessible by remote maintenance in accordance with No. 1.

3. In case of doubt, remote maintenance takes place from our own company.

4. The customer must ensure that the above requirements are met in this clause. If these conditions are not met, we can make our own service dependent on the customer either making the contractual condition or the customer refunding the additional expenses caused by the change according to the applicable price and remuneration list.

§ 4 Service times

1. We provide services only on business days (working days without Saturdays, Sundays and public holidays, whereby all public holidays in Baden-Württemberg, including 24.12. and 31.12. apply as public holidays) from 9.00 a.m. to 5.00 p.m., unless anything else is agreed upon. There is no obligation to provide any further service.

2. Outside of the business hours referred to in the preceding paragraph, we provide services on the basis of separate agreement and remuneration at the customer’s request.

§ 5 Support package as a single ticket or maintenance contract, recognition of activity report

1. Support can be used as a single ticket. For this purpose, a single contract for a support ticket with a fixed price and a certain maximum time quota, limited to one topic, must be concluded under prepayment. Support services can then be retrieved until the maximum time quota for the specified topic is reached. The right to cancel this Support Ticket is excluded; the right to terminate for good cause remains unaffected. The services provided by us are calculated in time units of 15 minutes. The support ticket ends automatically when the topic is completed, or the remaining time quota expires.

2. Support can also be used through a general agreement contract. We will then provide our services on call within the framework of the agreement period of 12 months up to the maximum time quota specified in the general agreement. If the quota is not used, it shall be forfeited and shall not be transferable to the next contract year or can be transferred to other general agreement contracts. The customer is obliged to pay the agreed lump sum in advance for the respective year. The general agreement contract automatically ends after 12 months; the right to terminate for important reasons remains unaffected. The services provided by us are billed in units of 15 minutes.

3. In a general agreement contract, a specific response time, such as 4 hours or 8 hours, can be agreed upon. This reaction time applies within the service times in C.§ 4. The only thing that is due is the action taken within the agreed reaction time. There is no obligation to restore or troubleshoot within this time frame.

4. Once the maximum quota has been reached, we can terminate the service. If there is general agreement contract, it can be stipulated that we may exceed the maximum quota within a period to be regulated there. The additional activity is then performed on the basis of our support tickets in 5.1. In the absence of a different agreement, the remuneration is due immediately without deduction after invoicing.

5. The customer can request proof of the monthly activity performed within 7 days from the beginning of the month. Without objection, the customer acknowledges the activity listed in the proof of activity to the extent listed.

§ 6 Further obligations of the customer to cooperate, freedom of instruction

1. The customer is obligated to describe as accurately as possible any problems that may arise as a cause of support.

2. Instructions from the customer to our employees for the specific form of service provision are excluded, unless instructions are necessary in connection with data protection requirements, security requirements or operating regulations in the customer’s operation. We always decide on our own responsibility for the necessary measures within the scope of our fulfillment obligations and expertise.

§ 7 Customer’s obligation to secure data, liability for data loss

1. The customer must perform a data backup of the respective system before each access from us to the customer’s system.

2. Liability for the restoration of the customer’s data shall be limited in amount to the costs necessary to restore the data if it is secured from access or can otherwise be reconstructed from machine-readable data material with reasonable effort.

§ 8 Data protection, order processing

The customer warrants that, insofar as we are required by the customer to provide services and thereby gain access to the customer’s system, the data protection regulations are complied with; i.e. the customer guarantees that we either do not receive any personal data from third parties or that we can access any personal data stored by the customer without violating data protection regulations. If this presupposes the conclusion of a separate agreement on the processing of data on behalf (order processing), the customer must demand the conclusion of such data before the provision of the service. Delays due to negotiations for the conclusion of an order processing do not lead to a culpable delay on our part.