General Terms and Conditions
§ 1 Introduction/ Area of Application
Contract partner is: PixelPlanet GmbH, Hoyaer Str. 13, 28205 Bremen, Germany.
Our offers are destined to companies and entrepreneurs only. Our terms and conditions for tenders and the delivery of goods and services apply to the exclusion of all others; any customer terms that contradict or divert therefrom are not recognised unless said terms have been expressly accepted in writing. Our terms and conditions shall apply even where we provide goods or services to customers unconditionally and in the knowledge of terms that contradict or divert therefrom. All agreements made between the customer and us relating to filling the order are contained in writing in this contract. Our general terms and conditions apply only to those companies covered by §24 AGBG. Our general terms and conditions also apply for all future transactions with the customer.
§ 2 Tenders and Contracts
The information on our products and services published in advertising material or on the Internet is to be understood as a non-binding invitation for the submission of a tender by the customer. All orders placed by the customer for our products, irrespective of whether they are printed, faxed or sent telephonically or electronically, are deemed to be offers as understood by §145 BGB. Should the customer placing the order not receive a response from us within 14 days, irrespective of whether it is printed, faxed or sent telephonically or electronically, the offer has not been accepted. A contract with the customer does not come into force until a written order confirmation or an invoice has been sent, or until the software package has been accepted and used, or use has been made of the service in some other way. Should the customer require additional services, a new contract must be drawn up or the existing one extended (requires written form).
§ 3 Prices
Unless stated otherwise in the order confirmation, our prices are “ex works”. Our prices include the statutory value added tax, which is shown separately on the invoice at the rate current at the date of the invoice.
§ 4 User Rights
We hereby grant our customers the single, personal, open-ended, non-exclusive right to the use of the software we provide. We reserve all copyright to the software program and to other documentation material. The exact extent of the rights and obligations deriving from the granting of the right of use is set out in the “License Agreement” drawn up with the customer. Said License Agreement is an integral part of this contract.
§ 5 Payment Terms
The purchase price is payable net (without deductions) within 14 days of the date of invoice. We reserve the right to refuse payments made by cheque or Bill of Exchange, both of which are only accepted subject to clearance/discharge. The debt remains until it has been fully paid. Discount and bill charges are borne by the customer and are payable immediately. In the event of default on the part of the customer, we are entitled to charge late payment interest amounting to 4% p.a. above the German Federal Bank base rate applicable at the time, in accordance with the Discount Rate Transition Act pursuant to the introduction of the EURO. If we are able to prove default damages that exceed this rate, we are entitled to charge accordingly. However, should the customer be able to prove that the default has resulted in our suffering no, or only insignificant damage, he is at liberty to do so. The customer shall be entitled to offset outstanding payments only in the event that his counter claims have been established in law, are undisputed, or accepted by us. The customer is entitled to exercise retention rights only insofar as his counter claim derives from the same contractual relationship. Credit card payments are processed by PAYONE GmbH · Fraunhoferstr. 4 · 24118 Kiel, Germany.
§ 6 Delivery Terms
The start of the delivery time we quote is conditional upon prior clarification of all technical questions. Furthermore, the fulfilment of our delivery obligation is conditional upon the customer meeting his obligations on time and in full. We reserve the right to a non-performance plea. In the event of default in acceptance, or of other obligations, on the part of the customer, we are entitled to demand compensation for any damage caused thereby including any additional costs resulting therefrom. We reserve the right to claim for consequential damage. Should the situation described under Clause 3 obtain, the risk of any loss or any deterioration of the order content shall pass to the customer at the point in time at which the acceptance default or payment default commences. We are liable in law should, as a result of a delivery delay for which we are responsible, the customer be entitled to assert that his interest in the further fulfilment of the contract no longer obtains. Furthermore we are liable in law should the delivery delay be the result of deliberate or grossly negligent contract violation; we are also responsible for culpability on the part of our representatives or vicarious agents. Should the delay in delivery not be the result of deliberate contract violation on our part, liability for compensation shall be restricted to damages that are foreseeable and typical for the case in point. We are also liable in law in the event that a delivery delay for which we are responsible is the result of culpable violation of an essential contractual obligation. In this event however, liability for compensation shall be restricted to damages that are foreseeable and typical for the case in point.
§ 7 Dispatch and Transfer of Risk
Supply of the software package is hereby agreed on an “ex-works” basis. We bear the cost of dispatch. If the customer wishes the dispatch to be postponed, the risk transfers to the customer at the point of which the goods are declared ready for dispatch. Where the software package is sent to the customer electronically, delivery is deemed to take place as soon as the transfer to the requisite target system is completed.
§ 8 Warranty
Appropriate care will be exercised in the creation of the contracted products. Recognised programming rules are observed in the writing of the software. The parties however are aware that with current technology it is not possible to develop computer programs that are entirely free of errors for all application conditions. No consideration is given to any insignificant reduction in usability. We guarantee that the software products are in general accurately described in the accompanying product documentation and can be used within this framework. We are committed to the provision of specific attributes only following written confirmation thereof. The technical data and descriptions contained in the program documentation alone do not constitute a guarantee of specific attributes. No guarantee is given that the software product will meet the special requirements of the customer. The customer alone carries full responsibility for the selection and use of the product and for the results intended thereby. Furthermore, no guarantee is given for versions of the software that are modified to meet customer wishes, or processed or altered in any way, unless it is shown that any defects are in no way connected with such modification, processing or alteration. The customer”s warranty rights are conditional upon the customer having properly discharged his obligation with regard to product examination and complaint in accordance with §§377, 378 HGB. In the event of a defect for which we bear responsibility, we are entitled either to repair or to replace the defective product at our choice. Should attempts at repair fail twice or should further attempts place unreasonable demands on the customer, he is entitled to demand recission (cancellation of the contract) or appropriate diminution (reduction in the purchase price). Where the software does not have a warranted attribute, we are liable to pay compensation for non-compliance under the statutory regulations of §§463,480 Abs. 2 BGB. This does not apply insofar as the objective of the warranted attribute relates solely to the contractual conformity of the product in question and not to the risk of any consequential defect. We are liable in law in cases where the customer asserts a claim for compensation based on intent or serious negligence, including intent or serious negligence on the part of our representatives or vicarious agents. In the event that there is no accusation of deliberate contract violation on our part, liability for compensation shall be restricted to damages that are foreseeable and typical for the case in point. We are liable under law should we culpably violate an essential contractual obligation. In this event however, compensation shall be restricted to damages that are foreseeable and typical for the case in point. Compensation liability beyond this is excluded. In this context, we accept no liability in particular for defects that do not arise in the contracted product itself. The mandatory regulations of product liability legislation remain unaffected. The warranty period is six months and commences with the transfer of risk. This period is subject to the statute of limitations and also extends to claims for compensation of any consequential defect provided that no claims are made on the grounds of tort in which event the statute of limitations defined in law applies.
§ 9 Total Liability
Any liability for compensation extending beyond that set out in §8 is excluded, irrespective of the nature of the asserted claim. This applies in particular to claims for compensation for culpability at the time the contract is signed, to positive contract violation or to tortious claims as in § 823 BGB. Claims for compensation due to commercial impracticability or inability remain unaffected. The same applies where liability is mandatory under the regulations of product liability legislation. Where compensation liability on our part is excluded or restricted, said exclusion or restriction also extends to personal compensation liability on the part of our employees, workers, staff, representatives and vicarious agents.
§10 Court of Jurisdiction and Place of Performance
The court of jurisdiction is Bremen or our registered place of business. We are however entitled to take proceedings against the customer at his local court. Place of performance is our registered place of business.
Date: 02/11/2017 (v220.127.116.11)