General Terms and Conditions
General Terms and Conditions of digitronic computersysteme gmbh Chemnitz (As of 06/2017)
1. General information
1.1 The following General Terms and Conditions govern the legal relationships between the company digitronic Computer Systems GmbH Chemnitz (hereinafter referred to as “digitronic”) and the customer (hereinafter referred to as the “Customer”).
1.2 Customers can be both consumers and entrepreneurs. A consumer within the meaning of these General Terms and Conditions is any natural person who concludes a legal transaction for purposes that are predominantly unrelated to his/her commercial activities or activities as a self-employed professional. An entrepreneur within the meaning of these General Terms and Conditions is a natural or legal person or a legal partnership that concludes a legal transaction in the exercise of his/her/its commercial or self-employed professional activity.
1.3 digitronic’s deliveries, services and offers, and other legal transactions between digitronic and the Customer are undertaken exclusively on the basis of these Terms and Conditions of business. These also apply to entrepreneurs for all future business relationships, even if they are not expressly agreed again. Countervailing confirmations on the part of the Customer with regard to his/her/its business and/or purchasing terms and conditions are hereby rejected. Deviations from these Terms and Conditions of business are only effective if they are confirmed by digitronic in writing, unless they are individual contractual agreements.
1.4 digitronic is entitled to modify these General Terms and Conditions at any time. All changes to the General Terms and Conditions only apply to Customer offers declared after the modification.
2. Offers and conclusion of contract
2.1 Unless expressly designated as binding, digitronic’s offers are subject to confirmation and non-binding. The Customer makes a legally binding contractual offer in response to a non-binding offer by placing his/her/its order by letter, fax, or email (text form). The contract is formed upon receipt of the declaration of acceptance by digitronic, which can only be effected by letter, fax, or email (text form). The sending of an order acknowledgement (confirmation of receipt of the order) does not in itself constitute an acceptance of the contract. If the Customer has received a binding offer, the contract is formed when he/she/it timely accepts said offer by letter, fax, or email (text form) and digitronic receives this declaration of acceptance.
2.2 digitronic personnel are not authorized to enter into verbal ancillary agreements or to give verbal warranties that go beyond the contents of the written contract.
2.3 digitronic reserves the right to make technically necessary deviations from the offer documentation—even after conclusion of the contract—provided they are reasonable for the Customer or to his/her/its advantage. digitronic reserves exclusive usage rights for digitronic documents, such as illustrations and drawings. Without the consent of digitronic, they may not be made available to third parties, copied, made available to the public, or used in any other manner unless unavoidable for the fulfilment of the contract.
2.4 If the contractual partners reach an agreement by electronic mail (email), they acknowledge the unlimited effectiveness of any declarations of intent communicated by this medium subject to the following provisions:
2.4.1 The usual information contained in the email may not be suppressed or circumvented by anonymization, i.e., the message must contain the name and the email address of the sender, the time of sending, and a statement of the name of the sender as the conclusion of the message. Within the framework of this provision, an email received shall be deemed to originate from the sender unless there is evidence to the contrary.
2.4.2 Confidentiality is not guaranteed for unencrypted data transmitted via Internet.
3. Prices and terms of payment
3.1 All prices stated to consumers include statutory value-added tax, which is currently 19%. All prices stated to entrepreneurs are net of statutory value-added tax unless otherwise specified. Prices are stated in euros.
3.2 Freight or shipping and packaging costs are calculated separately.
3.3 Unless otherwise agreed, payments become due immediately after the invoice date without any deductions. The invoice is sent with the delivery. Unless agreed otherwise, payment shall be made by bank transfer.
3.4 The customer may only offset against claims that are undisputed or have been legally established.
4. Retention of title
4.1 Sold and delivered goods remain the property of digitronic until the purchase price has been paid in full. Up to the time of the transfer of title, the Customer is obliged to treat the purchase item with care, and is not entitled to dispose of the goods in a legal transaction. If third parties assert rights to the goods delivered subject to retention of title, the Customer is obliged to notify digitronic of this fact without delay. In the event of conduct in breach of the contract, such as in the case of a default of payment by the Customer, digitronic shall be entitled to rescind the contract after a reasonable period. The Customer acquires the rights of use specified in the product license only with full acquisition of the ownership of the program media.
4.2 If the Customer is an entrepreneur, he/she must keep the goods subject to retention of title on behalf of digitronic with due commercial diligence, insuring them adequately against fire, water, theft, and other risks of loss at his/her own expense.
4.3 The Customer hereby assigns to digitronic all receivables to which it is entitled from the resale of the product or the relicensing of the software. He/she is revocably entitled to collect these receivables. At the request of digitronic, he/she must provide information regarding the assigned receivables and the associated debtors.
5. Right of revocation and return costs
5.1 Consumers are generally entitled to a right of revocation. The right of revocation does not apply to contracts for the delivery of audio or video recordings or computer software in sealed packaging if the seal has been removed after delivery.
5.2 More detailed information on the right of revocation can be found in the revocation notice.
5.3 In the event of revocation, the customer shall bear the cost of returning the goods.
6. Deliveries and Services
6.1 If no delivery date is specified, the delivery time is 7 working days from the conclusion of the contract.
6.2 Delays in deliveries and services due to force majeure and due to events that make the delivery or service significantly more difficult or temporarily impossible, and for which digitronic is not responsible (strikes, lockouts, administrative orders, natural disasters, traffic disruption, etc.), shall entitle digitronic to delay the delivery or service for the duration of the impediment plus a reasonable start-up time, even if legally binding time limits and dates have been agreed.
6.3 digitronic is entitled to provide partial deliveries and partial services at any time, to an extent reasonable for the Customer, provided that the final partial service/partial delivery complies with the agreed delivery date.
6.4 For software services of all kinds, development or other services, the delivery is deemed to be complete upon the handing over of the data carrier or the developed system. The source codes are not part of the delivery owed.
6.5 Products supplied for test and demonstration purposes remain the property of digitronic. digitronic reserves the right to design software delivered for these purposes such that the programs will cease to be fully operational after the end of the agreed test or demonstration period. The Customer can assert no claims arising from this fact.
7. Testing and transfer of risk
7.1 For Customers who are consumers, the risk of accidental failure or accidental deterioration of purchased and delivered goods always transfers to the Customer on handover to the Customer. digitronic thus bears the risk for delivery and dispatch.
7.2 For Customers who are entrepreneurs, the risk of accidental failure or accidental deterioration of purchased and delivered goods transfers to the Customer on handover to the Customer, in the case of collection by the Customer. In the case of delivery, the risk transfers to the Customer (entrepreneur), as soon as digitronic has delivered the item to the forwarder, the freight carrier, or another person or institution designated for the execution of the shipment, so the delivery and shipment shall be at the risk of the entrepreneur.
7.3 Any default of acceptance by the Customer (consumer or entrepreneur) shall be treated as equivalent to a completed handover.
7.4 If the customer is a merchant, he/she must inspect the goods for completeness and any defects immediately upon receipt, reporting any deviations without delay. Express reference is made to § 377 of the HGB [German Commercial Code].
8. Installation, training, conception
8.1.1 The Customer is responsible for the proper installation of the delivered software.
8.1.2 If the Customer has commissioned digitronic with the installation, the following shall apply:
18.104.22.168 Before starting the installation, the Customer is obliged to perform a complete data backup.
22.214.171.124 digitronic shall be entitled to use the assistance of third parties to fulfil the services to be rendered.
126.96.36.199 Before starting the installation, the preparatory work on the part of the Customer required for the installation to begin, must be completed at the Customer’s expense and responsibility so that the installation can be started immediately upon arrival of the digitronic staff or of the subcontractor commissioned by digitronic, and can be performed without interruption. During the installation, the Customer must make all necessary facilities available, assist in the operation of all connected external devices, as well as allowing the work to be carried out even outside normal working hours, if needed.
188.8.131.52 For systems with stored programs, the Customer must inform digitronic of the user data in accordance with the agreed scope of services in good time before the setup of the system and in a binding manner, since otherwise the commissioning date cannot be guaranteed. If the Customer subsequently changes this data or the scope of services, the associated additional services shall be charged separately according to the applicable price list.
184.108.40.206 If the provision of third-party programs by the customer for the purpose of the installation results in an infringement of third-party rights, the Customer hereby indemnifies digitronic against third-party claims.
220.127.116.11 The acceptance of installation services shall occur after successful functional testing on the basis of the contractual agreements and taking into account the respective specifications by joint signing of an acceptance report. If the Customer does not accept the installation despite a successful functional test, digitronic is entitled to set a reasonable grace period, with notice of the consequences of the expiration of that period, after which the installation services shall be deemed to have been accepted, unless the Customer, within this period, provides written notification of deficiencies that are not insignificant or not capable of rectification. Should the Customer fail to declare acceptance despite the deficiencies being only insignificant or not capable of rectification, the acceptance shall be deemed to have been made without objection after a period of two (2) weeks after provision of the installation or after any acceptance deadline that has been agreed.
8.2 Training sessions
8.2.1 The training will familiarize the Customer and its employees with the operation of digitronic products and applications. The resolution of program errors is not part of the training.
8.2.2 The training fees include the cost of the training and the seminar documents. For training away from digitronic’s premises, travel and accommodation costs for digitronic employees shall be reimbursed as incurred, and travel expenses shall be reimbursed at the maximum rate under tax law. The choice of the means of transport is at the discretion of digitronic.
8.2.3 Training and presentations may be cancelled free of charge up to the 15th day before the start of the seminar. The cancellation must be in writing. In the event of cancellations up to the 8th day before the start of the seminar, 50% of the agreed fee will be charged; in the event of a later cancellation, the agreed fees will be payable in full.
If the Customer commissions the creation and implementation of a concept, the details shall be regulated in a separate project contract.
9. EU import sales tax
If the Customer is registered outside Germany, he/she/it must adhere to the EU import sales tax regulations. This includes in particular notifying digitronic of the sales tax identification number, without being specifically so requested.
10.1 Unless otherwise agreed, the warranty rights of the Customer shall be in accordance with the legal regulations; particular attention should be paid to the Paragraph 11 for possible claims for damages.
10.2 digitronic provides a warranty for the agreed quality of the software and for the Customer to be able to use the software without infringing upon any third-party rights. The proper warranty does not apply to defects due to software supplied by digitronic being used in a hardware and/or software environment that does not meet the stated requirements and for which the software is therefore not explicitly approved.
10.3 digitronic may fulfil its warranty obligations with prior notice at the customer’s location or by remote diagnostics/remote access, provided that the technical conditions for this are met. The exchange of data is carried out in compliance with the applicable legal regulations for data protection. digitronic also fulfils its obligation for remediation if it posts updates with automatic installation routines on the homepage for the Customer to download, and provides the customer with telephone support in the event of the installation problems occurring within the scope of the warranty (supplementary performance).
10.4 If the customer is an entrepreneur, he/she must report obvious and visible defects at the latest within fourteen (14) days after receipt of the delivery or performance or after acceptance. Defects that cannot be discovered within this period, even with careful examination, must be reported to digitronic within a limitation period of fourteen (14) days after discovery. Delayed reporting will exclude claims on the part of the Customer in this respect.
11.1. digitronic, its legal representatives, and vicarious agents shall not be liable for damage, unless otherwise specified below.
11.2. The disclaimer shall not apply to claims for damages due to a culpable injury to life, body, or health, or to claims for damages due to a culpable violation of material contractual obligations. Material contractual obligations are those without the fulfilment of which the proper execution of the contract would be impossible, and/or compliance with which may regularly be relied on by the Customer. The disclaimer shall likewise not apply to the liability for damage due to an intentional or grossly negligent breach of duty or malice on the part of digitronic, its legal representatives, or its vicarious agents.
11.3. Mandatory regulations—in particular those of the German Product Liability Act (ProdHaftG)—shall remain unaffected.
11.4 The Customer is obliged to perform a comprehensive data backup before installing the software provided by digitronic.
12. Scope of the granting of rights
The information on intellectual property rights on the program medium or the packaging must be observed. Unless expressly agreed otherwise, the Customer acquires a simple, non-exclusive right of use in accordance with the license conditions for the products concerned.
13. General provisions, settlement of disputes
13.1 The law of the Federal Republic of Germany shall apply to these Terms and Conditions of business and all legal relations between the business partner and digitronic to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods. The language of the contract is German.
13.2 If the Customer is a commercial entrepreneur, a legal person under public law or a special fund under public law, the place of performance as well as the place of jurisdiction for all claims arising from the business relationship shall be the registered office of digitronic. This also applies to persons who have no general place of jurisdiction in Germany, or persons who have relocated their domicile or habitual residence outside of Germany after the conclusion of the contract, or whose domicile or habitual residence is unknown at the time of bringing the action.
13.3 Should one or more provisions of these General Terms and Conditions be or become ineffective or the text of this contract text contain a gap, then the Contracting Parties shall replace or supplement the ineffective or incomplete provision by means of appropriate regulations that fulfil the commercial purpose of the intended regulation as far as possible. The validity of the remaining provisions shall remain unaffected.
13.4 digitronic does not participate in dispute-resolution proceedings before consumer arbitration bodies.
13.5 The European Commission provides a platform for online settlement of disputes on the Internet at the following link: http://ec.europa.eu/consumers/odr. This platform serves as a starting point for the out-of-court settlement of disputes arising from online purchase or service contracts in which a consumer is involved.