§1 GENERAL
(1) All sales, delivery and installation contracts of the company SOS Software Service GmbH are concluded exclusively on the basis of the following General Terms and Conditions. These General Terms and Conditions shall apply to all current and future transactions between the contracting parties without the need for renewed reference to the General Terms and Conditions.
(2) Consumers within the meaning of the Terms and Conditions are natural persons with whom a business relationship is entered into without a commercial or independent professional activity being attributable to them. Entrepreneurs within the meaning of the Terms and Conditions are natural or legal persons or partnerships with legal capacity with whom a business relationship is entered into and who act in the exercise of a commercial or independent professional activity. Customers i.S.d. Terms and Conditions are both consumers and entrepreneurs.
(3) Conflicting terms and conditions of the customer, even if known, shall only be valid if they have been expressly agreed in writing.
(4) All ancillary agreements and amendments to the contract must be confirmed in writing in order to be binding.
(5) The industrial property rights of third parties must be observed when using the delivered goods.
§2 CONCLUSION OF CONTRACT
(1) Our offers are subject to change.
(2) We reserve the right to correct any calculation or printing errors in the offer. We reserve the right to make technical changes as well as changes in shape, color and/or weight within reasonable limits.
(3) By ordering goods, the customer makes a binding declaration that he wishes to purchase the goods ordered.
(4) We are entitled to accept the contractual offer contained in the order within three weeks of receipt. Acceptance can be declared either in writing or by delivery of the goods to the customer.
(5) If the consumer orders the goods electronically, we will immediately confirm receipt of the order. The confirmation of receipt does not constitute a binding acceptance of the order. The confirmation of receipt can be combined with the declaration of acceptance.
(6) The conclusion of the contract is subject to correct and timely delivery by our suppliers. This shall only apply in the event that we are not responsible for the non-delivery, in particular if a congruent hedging transaction has been concluded with our supplier. The customer shall be informed immediately of the non-availability of the service. The consideration will be refunded immediately.
(7) If the consumer orders the goods electronically, the text of the contract will be saved by us and sent to the customer by e-mail on request, together with these GTC.
§3 RIGHT OF WITHDRAWAL FOR CONSUMERS IN DISTANCE SELLING CONTRACTS
(1) You can revoke your contractual declaration within 14 days without giving reasons in text form (e.g. letter, fax, e-mail) or – if the goods are delivered to you before the deadline – by returning the goods. The period begins after receipt of this instruction in text form, but not before receipt of the goods by the recipient (in the case of recurring deliveries of similar goods not before receipt of the first partial delivery) and also not before fulfillment of our information obligations under Article 246 § 2 in conjunction with § para. 1 and 2 EGBGB and our obligation pursuant to § 312e para. 1 sentence 1 BGB in conjunction with Article 246 § 3 EGBGB. Timely dispatch of the revocation or the goods is sufficient to comply with the revocation period. The revocation is to be sent to:
SOS Software Service GmbH
Unterer Talweg 40
86179 Augsburg
Email: info@sos-software.com
(2) Consequences of revocation: In the event of an effective revocation, the services received by both parties must be returned and any benefits derived (e.g. interest) surrendered. If you are unable to return the goods or services received in whole or in part or only in a deteriorated condition, you must compensate us for the loss in value. This does not apply to the surrender of goods if the deterioration of the goods is exclusively due to their inspection – as would be possible for you in a store, for example. In addition, you can avoid the obligation to pay compensation for any deterioration caused by the intended use of the item by not using the item as if it were your property and refraining from doing anything that could impair its value. Items that can be sent by parcel post are to be returned at our risk. You must bear the costs of returning the goods if the goods delivered correspond to those ordered and if the price of the goods to be returned does not exceed 40 euros or, if the price of the goods is higher, if you have not yet paid the consideration or a contractually agreed part payment at the time of revocation. Otherwise the return shipment is free of charge for you. Items that cannot be sent by parcel post will be collected from you. Obligations to reimburse payments must be fulfilled within 30 days. The period begins for you with the dispatch of your declaration of revocation or the goods, for us with their receipt.
(3) Individual software according to customer specifications as well as installation services or delivery of audio and video recordings are expressly excluded from the right of withdrawal. A software data carrier that has already been unsealed or the sealed packaging of the software carrier has been opened is also excluded from the right of withdrawal.
§4 PRICES
(1) The prices offered are valid for four months from the date of conclusion of the contract. The purchase price includes the statutory value added tax. In the case of domestic mail order purchases, the purchase price is subject to a flat-rate shipping fee of 10.50 euros. Shipment shall be at the customer’s expense, except where carriage paid delivery has been agreed in writing. The customer must pay the actual freight costs for shipping purchases abroad. The customer shall not incur any additional costs when ordering by means of distance communication.
(2) If a delivery period of more than four months has been agreed, the Seller shall be entitled to pass on to the Customer any cost increases that have occurred in the meantime for procurement, manufacture, delivery, assembly or similar, including cost increases caused by changes in the law (such as an increase in value added tax), by increasing the price accordingly. Delivery on the basis of the price increase shall take place without prior notification of the customer.
(3) The agreed prices do not include installation, unless this is contractually owed.
(4) Installation and training shall be invoiced at our applicable hourly rates unless a flat rate has been agreed in writing.
§5 SHIPMENT AND TRANSFER OF RISK
(1) If the buyer is an entrepreneur, the risk of accidental loss and accidental deterioration of the goods shall pass to the buyer upon handover, in the case of sale by dispatch upon delivery of the goods to the forwarding agent, carrier or other person or institution designated to carry out the shipment. Insurance against damage of any kind shall only be taken out at the express request of the customer and at the customer’s expense.
(2) If the buyer is a consumer, the risk of accidental loss and accidental deterioration of the item sold shall not pass to the buyer until the item is handed over, even in the case of sale by dispatch.
(3) In the case of contractually agreed installation services by us, we shall bear the risk of accidental loss until acceptance of the work by the customer.
(4) If the buyer is in default of acceptance, this shall be deemed equivalent to handover.
(5) If the installed system has been lost or deteriorated before acceptance through no fault of our own, we shall be entitled to demand the agreed price less the expenses saved. The same shall apply in the event of impossibility of installation for which we are not responsible.
(6) The customer may request a repeat installation within the scope of para. 5 if and to the extent that this is reasonable for us, in particular taking into account our other contractual obligations. A new fee shall be payable for the repeat installation.
(7) In the case of agreed training services on our part which cannot be held on the agreed date through no fault of our own, clauses (5) and (6) shall also apply.
§6 DELIVERY TIME, INSTALLATION PERIOD
(1) As long as the customer is in default with the fulfillment of his contractual obligations, our delivery obligation shall be suspended.
(2) Delivery periods and dates offered by us shall only be binding if they have been confirmed by us in writing.
(3) Delivery periods shall commence on the date of issue of the confirmation. They shall be deemed to have been met if the goods have left our factory by the end of the delivery period or the customer has been notified that the goods are ready for dispatch.
(4) If we exceed the agreed delivery period, the customer may set us a grace period of 3 weeks by means of a registered letter, starting from the date of the written notice of default by the customer, and withdraw from the contract after the expiry of this period.
(5) The customer shall only be entitled to damages for non-performance in the event that we or our vicarious agent have caused the delay intentionally or through gross negligence.
(6) We are entitled to provide partial services.
(7) If we are prevented from delivering on time due to force majeure, war, strike, lockout, traffic disruption or due to delivery difficulties of our suppliers, although we have concluded a sufficient covering transaction in good time, the delivery period or the delivery date shall be extended by the duration of the disruptions.
(8) If the hindrance lasts longer than three months, we shall be entitled to restrict or discontinue delivery or to withdraw from the contract in whole or in part without the customer being entitled to subsequent delivery or compensation. In such a case, we are obliged to inform the customer immediately. In the case of a partial delivery, the customer has the right to withdraw from the entire contract if the partial delivery is worthless for him.
(9) The installation deadline shall be deemed to have been met if the installation is ready for acceptance by the customer by the time it expires or, in the case of a contractually agreed trial, if the trial is ready to be carried out.
(10) Verzögert sich die Installation durch den Eintritt von Umständen, die von uns nicht grob fahrlässig oder vorsätzlich verschuldet sind, so tritt, soweit solche Hindernisse nachweislich auf die Fertigstellung von erheblichen Einfluss sind, eine angemessene Verlängerung der Frist ein; dies gilt auch dann, wenn solche Umstände eintreten, nachdem wir in Verzug geraten sind.
(11) Sofern wir die Nichteinhaltung verbindlich zugesagter Fristen und Termine zu vertreten haben oder uns in Verzug befinden, und dem Kunden nachweisbar infolge Verzugs unsererseits ein Schaden erwächst, so kann der Kunde eine Verzugsentschädigung verlangen; diese beträgt jede volle Woche der Verspätung 0,5% im ganzen aber höchstens 5% vom vereinbarten Preis für denjenigen Teil der von uns zu installierende Anlage, der infolge der Verspätung nicht rechtzeitig benutzt werden kann. Darüber hinausgehende Ansprüche sind ausgeschlossen, es sei denn, der Verzug beruht auf zumindest grober Fahrlässigkeit unsererseits.
§7 EXPORT REGULATIONS, EC IMPORT TURNOVER TAX
(1) The products delivered by us are intended for use and to remain in the country of delivery agreed with the customer. The re-export of contractual products is subject to approval by the customer and is subject to the foreign trade regulations of the Federal Republic of Germany and, in the case of products imported from the USA, to the export control regulations of the United States of America. The customer must inform himself about these regulations and obtain the permits on his own responsibility. The customer is liable to us for compliance with the regulations.
(2) If the customer is domiciled outside the Federal Republic of Germany, he is obliged to comply with the import VAT regulations of the European Union. He must inform us of his VAT identification number and any changes to it without being requested to do so. Upon request, he is obliged to provide information about his status as an entrepreneur, the use and transportation of the delivered goods, as well as with regard to the statistical reporting obligation.
(3) The customer shall also be obliged to reimburse us for the expenses and costs incurred by us due to omitted or inadequate information on import VAT.
(4) We shall not be liable for the consequences of inadequate or omitted information provided by the customer regarding import VAT, unless we are guilty of intent or gross negligence.
§8 PAYMENT, DEFAULT
(1) Unless otherwise agreed, payments shall always be made by cash on delivery.
(2) Otherwise, the customer undertakes to pay the purchase price within 7 days of receipt of the goods. After expiry of this period, the customer shall be in default of payment. During the period of default, the consumer shall pay interest on the debt at a rate of 5% above the prime rate. During the period of default, the entrepreneur shall pay interest on the debt at a rate of 8% above the prime rate. We reserve the right to prove and assert a higher damage caused by default against the entrepreneur.
(3) If a deferment agreement has been made in favor of the customer, our claims shall become due immediately as soon as the customer is in default with the fulfillment of one or more obligations, bills of exchange or checks are protested, the customer ceases payments, is over-indebted, composition or bankruptcy proceedings are initiated or opened against his assets or the opening is rejected due to lack of assets.
(4) In the above-mentioned cases, we are entitled to demand the return of goods subject to retention of title and to withdraw from the contract.
(5) Bills of exchange shall only be accepted by agreement. Exchange costs and discount charges shall be borne by the customer.
(6) In the event of a deterioration in the customer’s financial situation occurring after the conclusion of the contract or if we subsequently become aware of a deterioration in the customer’s financial situation already existing at the time of conclusion of the contract, we shall be entitled to demand advance payment or the provision of security within one week, at our discretion.
(7) We also have the option of interrupting the execution of the order and demanding immediate settlement. In the event of refusal, we shall be entitled to withdraw from the contract. In this case, the customer shall not be entitled to compensation.
§9 OFFSETTING, ASSIGNMENT, RESALE OF LICENSE RIGHTS
(1) The customer shall only have the right to offset if his counterclaims have been legally established or recognized by us. The customer may only exercise a right of retention if his counterclaim is based on the same contractual relationship.
(2) We reserve the unrestricted right to assign our claims to third parties.
(3) The assignment of rights and/or the transfer of the customer’s obligations arising from the purchase contract are not permitted without our written consent. The resale of license rights by the customer to third parties is expressly excluded.
§10 PATENT AND COPYRIGHT
(1) Insofar as permissible and unless otherwise agreed, we assume no liability that the goods delivered by us do not infringe the industrial property rights of third parties. The buyer is obliged to inform us immediately if he becomes aware of such infringements or if he is notified of such infringements. Any legal costs are to be advanced appropriately.
(2) We reserve the right of ownership and copyright to software products created by us. They may not be made accessible to third parties without our written consent. Copying is also prohibited without our express consent. They must be returned to us immediately at our request. We shall only be liable for damages due to the infringement of any patent or other industrial property rights if we were aware or should have been aware that such rights exist or that they result in the customer being exposed to claims by third parties. The amount of our liability is limited to the invoice value of the goods.
(3) If the delivered goods have been manufactured according to the customer’s designs or instructions, the buyer shall indemnify us against all claims asserted by third parties due to infringements of industrial property rights.
§11 WARRANTY FOR SALE AND DELIVERY
(1) Entrepreneurs must notify us in writing of obvious defects as well as defects recognizable upon proper inspection within a period of one week from receipt of the goods; otherwise the assertion of the warranty claim is excluded. Timely dispatch shall suffice to meet the deadline. The entrepreneur shall bear the full burden of proof for all claim requirements, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect. Consumers must notify us in writing of obvious defects within a period of two months after the time at which the condition of the goods contrary to the contract was established. The date of receipt of the notification by us shall be decisive for compliance with the deadline. If the consumer fails to inform us, the warranty rights expire two months after the defect is discovered. This shall not apply in the event of fraudulent intent on the part of the seller. The burden of proof for the time of discovery of the defect lies with the consumer. If the consumer was persuaded to purchase the item by inaccurate statements made by the manufacturer, the consumer bears the burden of proof for his purchase decision. In order to prove warranty claims or guarantee claims, the purchaser is obliged to submit the proof of guarantee together with the invoices upon assertion.
(2) When sending in the devices to be repaired, the buyer must ensure that any files on them that are essential to him are backed up by copies so that they can be lost during repair work.
(3) If the Buyer is an entrepreneur, we shall initially provide warranty for defects in the goods at our discretion by repair or replacement. If the buyer is a consumer, he shall initially have the choice of whether subsequent performance is to be effected by repair or replacement. However, we are entitled to refuse the type of subsequent performance chosen if it is only possible at disproportionate cost and the other type of subsequent performance is without significant disadvantages for the consumer.
(4) The replacement of parts, assemblies or entire devices shall not result in any new warranty periods. In the event of installation, we shall not be liable for any damage resulting from improper modifications made by the customer or third parties.
(5) If the subsequent performance fails after two attempts on our part, the customer may, at his discretion, demand a reduction of the remuneration (reduction) or rescission of the purchase contract (withdrawal). However, the customer shall not be entitled to withdraw from the contract in the event of only a minor breach of contract, in particular in the case of minor defects.
(6) If the customer chooses to withdraw from the contract due to a legal or material defect after subsequent performance has failed, he shall not be entitled to any additional claim for damages due to the defect. If the customer chooses compensation for damages after subsequent performance has failed, the goods shall remain with the customer if this is reasonable. Compensation shall be limited to the difference between the purchase price and the value of the defective item. This shall not apply if we have fraudulently concealed the breach of contract.
(7) If the customer is an entrepreneur, claims for damages – in particular also for consequential damages – can only be asserted against us if the possible damage is based on an intentional or grossly negligent breach of contract on our part.
(8) For entrepreneurs, the warranty period is one year from delivery of the goods. For consumers, the limitation period is two years from delivery of the goods. This shall not apply if the customer has not notified us of the defect in good time (clause 1 of this provision).
(9) If the Buyer is an entrepreneur, only the manufacturer’s product description shall be deemed agreed as the quality of the goods. Public statements, promotions or advertising by the manufacturer do not constitute a contractual description of the quality of the goods.
(10) Garantien im Rechtssinne erhält der Kunde durch uns nicht. Herstellergarantien bleiben hiervon unberührt.
§12 COOPERATION OF THE CUSTOMER DURING INSTALLATION
(1) The customer shall support us in the installation by providing personnel and hardware.
(2) The customer shall bear the necessary expenses and disbursements of the company SOS Software Service GmbH for travel activities by prior arrangement. Accommodation costs shall also be borne by the customer. These expenses are not part of the contract price.
(3) The customer shall take the necessary measures to protect persons and property at the place of installation.
§13 Acceptance of the installation
(1) The customer is obliged to accept the goods as soon as he has been notified of their completion and any contractual testing has taken place.
(2) If there is an insignificant defect, the customer may not refuse acceptance if we expressly acknowledge our obligation to confirm the defect.
(3) If acceptance is delayed through no fault of our own, acceptance shall be deemed to have taken place two weeks after notification of completion.
(4) Our liability for recognizable defects shall lapse upon acceptance, unless the customer has reserved the right to assert a specific defect.
§14 LIMITATIONS OF LIABILITY
(1) In the event of slightly negligent breaches of duty, our liability shall be limited to the foreseeable, contract-typical, direct average damage according to the type of goods. This also applies to slightly negligent breaches of duty by our legal representatives or vicarious agents. We shall not be liable to entrepreneurs for slightly negligent breaches of insignificant contractual obligations.
(2) The above limitations of liability do not apply to claims of the customer arising from product liability. Furthermore, the limitations of liability shall not apply in the event of physical injury or damage to health attributable to us or in the event of loss of life of the customer.
(3) The customer’s claims for damages due to a defect shall become time-barred one year after delivery of the goods. This shall not apply if we can be accused of fraudulent intent.
§15 RETENTION OF TITLE
(1) In the case of contracts with consumers, we reserve title to the goods until the purchase price has been paid in full. In the case of contracts with entrepreneurs, we reserve title to the goods sold or installed until all our claims arising from the business relationship have been paid in full, even if the purchase price for specially designated claims has been paid.
(2) The customer may only dispose of the items subject to retention of title to the extent that they are to be processed, installed or resold in the ordinary course of business.
(3) The customer is obliged to inform us immediately of any access by third parties to the goods, for example in the event of seizure, as well as of any damage to or destruction of the goods. The customer must notify us immediately of any change of ownership of the goods or of his own change of residence. In the event of a resale of the goods, the entrepreneur hereby assigns his claims to us. We reserve the right to collect the claim ourselves as soon as the entrepreneur does not properly meet his payment obligations and is in default of payment. If necessary, the entrepreneur shall also reserve title to the goods for us by way of extended retention of title vis-à-vis his customers. The costs incurred by our intervention shall be borne by the customer.
(4) We shall be entitled to withdraw from the contract and demand the return of the goods if the customer acts in breach of contract, in particular in the event of default in payment or breach of a contractual obligation.
(5) The handling and processing of the goods by the entrepreneur shall always be carried out in our name and on our behalf. If processing is carried out with objects not belonging to us, we shall acquire co-ownership of the new object in proportion to the value of the goods delivered by us to the other processed objects. The same shall apply if the goods are mixed with other objects not belonging to us.
§16 FINAL PROVISIONS
(1) The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
(2) The place of performance for both parties is the registered office of our commercial branch in Augsburg.
(3) If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from the contractual relationship shall be Augsburg. The same shall apply if the customer does not have a general place of jurisdiction in Germany or if his place of residence or habitual abode is unknown at the time the action is filed.
(4) Should individual provisions of the contract with the customer, including these GTC, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. In place of the invalid provision, the valid provision that corresponds to the meaning and purpose of the invalid provision shall be deemed to have been agreed. In the event of loopholes, the provision that corresponds to what would have been agreed according to the meaning and purpose of this provision if the matter had been considered from the outset shall be deemed to have been agreed.