GENERAL TERMS AND CONDITIONS OF VOQUZ GROUP
1.1 These General Terms and Conditions shall apply to all companies of VOQUZ Group. At present, these companies specifically include VOQUZ IT Solutions GmbH, VOQUZ Secure IT Systems AG, VOQUZ Experts GmbH and VOQUZ Labs GmbH based in Germany, VOQUZ IT Solutions GmbH and VOQUZ Technologies GmbH based in Austria, as well as VOQUZ IT Solutions AG based in Switzerland.
1.2 Our offers, services and deliveries shall exclusively be provided based on these Terms and Conditions. These Terms and Conditions shall be deemed to be accepted at the latest upon receipt of the goods or services. Confirmations of the customer referring to its own terms and conditions shall herewith be expressly objected to.
1.3 Side agreements and differing agreements shall require the written confirmation of VOQUZ in order to be legally effective. Written individual agreements shall take precedence over these Terms and Conditions.
1.4 Our terms of sales shall also apply to all future business with the customer.
2.1 Our offers shall always be subject to change and without engagement.
2.2 Technical descriptions, explanations of a technical kind, technical specifications, functional descriptions, for example in manuals etc. shall not constitute guarantees of qualities. Properties shall only be considered to be warranted if expressly confirmed by VOQUZ in writing.
2.3 Technical and design deviations from descriptions and information in brochures, catalogues, and written documents as well as changes in the course of the technical progress shall remain reserved; rights against us cannot be derived from this.
3.1 All prices shall be ex our company seat in Munich. Conflicting agreements must be confirmed in writing.
3.2 In case of doubt, prices stated which obviously are exclusively addressed to commercial customers shall be deemed to be exclusive of the statutory VAT.
3.3 Transport and other packaging in accordance with the Packaging Ordinance will not be taken back, with the exception of pallets. The costs of the disposal of the packaging must be borne by the customer.
4. TIME OF PERFORMANCE
4.1 The dates and periods stated by us shall be non-binding unless expressly otherwise agreed in writing.
4.2 We shall be entitled to make acceptable partial deliveries and to invoice such partial deliveries.
4.3 Delays of performance due to force maje ure and/or due to events which make the performance significantly more difficult or render it impossible, e.g. business disruptions, strike, difficulties in procuring materials, official decrees etc. shall entitle us to postpone the delivery by the duratio n of the impairment plus a reasonable lead time or to rescind the contract completely or in parts with regard to the part which is yet unfulfilled.
4.4 In all other respects, we shall only be in default if the customer has set a period of grace amounting to a minimum of 1 month in writing.
4.5 In the case of a default of delivery due to slight negligence, we shall only be liable up to 5% of the delivery value affected by the default but in any time limited to the unforeseeable damage which typically occurs.
4.6 To the extent that the default is based on intention or gross negligence on our part, we shall be liable in accordance with the statutory regulations but limited to the foreseeable damage which typically occurs unless an intentional breach of contract at our fault is given.
4.7 We shall be liable for default in accordance with the statutory provisions to the extent that the underlying purchase contract is a firm deal and the interest of the customer in the further performance of the contract is no longer given as a consequence of the default of delivery at our fault.
5.1 The customer must immediately inspect the goods for completeness, compliance with the delivery documents and the purchase order and for defects and must immediately notify recognizable deviations and defects in writing. If no complaint is raised within 5 working days after receipt by the customer, the delivery shall be deemed to be in accordance with the contract unless the deviation was not recognizable despite a careful inspection. In addition, any transport damage or shortage recognizable upon delivery must be noted on the certificate of receipt of the freight forwarder.
6.1 It shall be a prerequisite for the assertion of customer’s rights based on defects that the customer has properly fulfilled its obligations to inspect and notify defects.
6.2 If a warranty event is given and if there is a manufacturer’s guarantee, the customer shall be obliged seriously to attempt to enforce the claims under the manufacturer’s guarantee vis-á-vis the manufacturer out of court. VOQUZ shall support the customer in this respect. In all other respects, the warranty claims of the customer shall remain unaffected.
6.3 If no sale of consumer goods is given, warranty claims shall become time-barred within 12 months, calculated from the passing of the risk; no warranty shall be given for used items. To the extent that the goods are the object of a sale of consumer goods, warranty claims shall become lapse within 24 months, provided that the customer has met the obligations to inspect and notify defects incumbent on the customer.
6.4 The warranty shall not cover the removal of faults which are caused by the environment existing at the customer’s or by the improper handling of the product.
6.5 Wear parts and accessories as well as repairs as a consequence of unauthorized interference of third parties shall be excluded from the warranty.
6.6 If and to the extent that the customer is not satisfied after that, we shall at first be entitled to supplementary performance by removal of defects or substitute delivery at our option. Exchanged goods or parts thereof shall be our property and must be s urrendered to us. If we are not willing or not able to render supplementary performance or if the supplementary performance is delayed beyond the reasonable periods for reasons at our fault or if the supplementary performance fails in another way or if the customer cannot reasonably be expected to accept it, the customer shall be entitled at its option to rescind the contract or to request a corresponding reduction of the purchase price.
6.7 In the case of a rescission, the customer must accept that any benefits from use enjoyed until the rescission are offset. The benefit of use for the period until the rescission shall be calculated on a pro-rata basis based on the purchase price and the usual overall duration of use, unless the use was only possible in a restricted manner or not at all due to the defect. Both parties shall be entitled to furnish proof of a lower or higher benefit of use. An insignificant defect shall not entitle the customer to rescind the contract.
7.1 The liability, for whatever legal reason and in particular due to the loss of confidentiality, availability or integrity of data or any consequential damage resulting from it, shall be excluded. This shall also apply to the liability of employees, agents and vicarious agents. The exclusion of liability shall not apply a) if we or our agents, employees or vicarious agents have acted in an intentional and/or grossly negligent manner, b) to any damage caused in a negligent or intentional manner resulting from the injury to life, limb or health by us or our vicarious agents, c) to claims under the product liability law The liability for the violation of essential contractual duties shall be limited to such damage which can be reasonably expected but the maxi mum liability per damage shall amount to EUR 25,000.00.
7.2 At short intervals and to an extent that corresponds to the risk, the customer shall regularly make backup copies of data and programs (including the operating system) on a suitable backup medium.
7.3 Any claims directed against us cannot be assigned without our written consent and they can exclusively be asserted by the customer itself.
8.1 Unless otherwise agreed, our invoices shall be immediately due for payment without deduction.
8.2 We shall be entitled at first to offset payments against older debts, despite provisions of the customer to the contrary. If costs and interest have already occurred, the payments must be offset against the costs, then the interest and last against the principal claim.
8.3 If the customer is in default, we shall be entitled to charge interest at an amount that is customary in banking from the respective time onwards but at least amounting to 8% above the base lending rate.
8.4 If the customer fails to meet its payments obligations in accordance with the contract or if the customer discontinues its payment or if we learn of other circumstances which question the creditworthiness of the customer, we shall be entitled to make the entire remaining debt due for payment, to request advance payments or the provision of securities.
8.5 Even if notices of defects or counterclaims are asserted, the customer shall only be entitled to offsetting, retention or reduction if we expressly give our consent or if counterclaims are legally bindingly ascertained.
9. RETENTION OF TITLE
9.1 We shall reserve the ownership regarding the delivery items until the complete payment of all receivables under the business relationship between us and the customer.
9.2. The customer shall be obliged to treat the delivery items with care; in particular, the customer shall be obliged to insure them against damage caused by fire, water and theft at the customer’s expense.
9.3. The customer shall be entitled to resell the delivery items in the proper course of business; however, pledging or transfer by way of security shall not be allowed to the customer. Receivables due to the resale of the goods shall already now be assigned to us in the amount of the final invoice amount. The customer shall continue to be entitled to collect the receivables without this affecting our authority to collect the receivable ourselves. However, we will not collect the assigned receivables as long as the customer meets its payment obligations from the income earned, is not in default of payment and as long as no petition for the opening of insolvency proceedings in court is filed or the payments of the customer have been discontinued. We herewith accept the assignment. The customer shall be obliged to provide us with any and all information which is necessary for the collection of the assigned receivables.
9.4 Any treatment or processing or alteration of the goods subject to retention of title shall be carried out for us. In the case of the processing, combination, mixing or commingling of the goods subject to retention of title with other goods not belonging to us, we shall be entitled to the resulting co-ownership share in the new item in the proportion of the invoice value of the goods subject to retention of title to the other goods processed at the time of processing, combination, mixing or commingling. If the customer acquires the sole ownership regarding the new item, it shall be deemed as agreed that the customer transfers the pro-rata co-ownership to us. That co-ownership shall be kept safe for us free of charge. In the above-mentioned cases, the above-mentioned assignment in advance shall only apply in the amount of the invoice value of the goods subject to retention of title which are resold together with other goods. In the case of pledging or other accesses of third parties to the goods subject to retention of title or the receivables assigned in advance, the customer must immediately notify us, stating the necessary information for an intervention. Any costs resulting from that which cannot be recovered from the third parties shall be at the expense of the customer.
10.1 Projects can only be terminated in accordance with the provisions of the contract to the end of the respective project phase in accordance with the specification of services.
10.2 Only the scope of services set down in writing at the start of the project shall become the subject matter of the contract. Changes of the contract shall only be possible with the written confirmation of VOQUZ. VOQUZ shall not be obliged to carry out significant changes of the contract. The customer shall undertake reasonably to extend the periods agreed in the case of changes of the contract.
10.3 If reserved working days are to be cancelled or postponed by the customer less than 5 days prior to their start at the request of the customer, we shall charge a cancellation fee amounting to 50% of the service amount. In the case of a cancellation within less than 2 days, we shall charge 100% of the service amount. The customer shall reserve the right to furnish proof that the cancellation did not result in any damage or that it resulted in a significantly lower damage than the above-mentioned lump-sum.
10.4 On principle, services shall only be performed during the usual working time, this means from Mondays to Fridays between 9:00 a.m. and 5:00 p.m. In the case of special agreements, services shall also be performed outside of this usual working time.
11. PROPERTY RIGHTS AND COPYRIGHTS
11.1 The customer shall be granted a non-exclusive right of use regarding the software supplied by VOQUZ and the associated documentation, its supplements and other documents in accordance with the attached license for the number of computer systems and/or persons stated in it. Granting sublicenses shall not be admissible.
11.2 In the case of an infringement of industrial property rights and/or copyrights due to the use of the product, VOQUZ shall indemnify the customer against the claims of the holder of the property rights in the same manner and extent as the manufacturer of the product supplied. The amount of our liability in this respect sha ll be limited to the invoice amount of the goods. VOQUZ shall generally procure the right of continued use regarding the product for the client. If this is not possible on terms which are economically reasonable in the opinion of VOQUZ, VOQUZ, at its own option, shall either change or replace the product in such manner that the property right is not infringed or shall take back the product and reimburse the amount paid to VOQUZ minus an amount for the use of the product. The above-mentioned obligation of VOQUZ shall only exist if the client informs VOQUZ of the claims against it and if all defensive measures including arrangements out of court remain reserved to VOQUZ or the manufacturer of the product. The customer shall not be entitled to further claims based on infringements of property rights.
12. PLACE OF PERFORMANCE AND PLACE OF JURISDICTION
12.1 The place of performance of deliveries and services shall be the location of the VOQUZ Company that becomes the contracting party.
12.2 In business deali ngs with entrepreneurs, bodies corporate organized under public law or public separate estates, the location of the VOQUZ company that becomes the contracting party shall be agreed to be the place of jurisdiction.
12.3 Exclusively the laws of the country w here the VOQUZ company that becomes the contracting party has its company seat shall apply. The application of the UN Sales Convention shall expressly be excluded.
13.1 The products supplied by us shall be intended to be used and to stay in the country of delivery agreed with the customer. The re-export of contractual products by the customer shall be subject to approval and shall be subject to the foreign trade regulations of the Federal Republic of Germany and the export control provisions of the United States of America in the case of products imported from the USA. The customer must independently obtain information about these regulations from the Federal Office for Export Control in accordance with the German provisions and from the US Depar tment of Commerce, Bureau of Export Administration in accordance with the US provisions. Regardless of whether the customer states the final destination of the supplied contractual products, the customer shall be obliged to obtain the necessary approval of the respective foreign trade authorities in charge, if any, in its own responsibility before exporting such products. Any forwarding of contractual products by customers to third parties with or without our knowledge shall at the same time require the tra nsfer of the export approval conditions. The customer shall be liable for the proper compliance with these conditions vis-à-vis us
14. FINAL PROVISIONS
14.1 If individual provisions are or become invalid, ineffective or voidable, they shall be interpreted and/or supplemented in such manner that the intended economic purpose is achieved to the greatest extent possible in a legally admissible manner; the ot her provisions shall remain unaffected. This shall apply to gaps which need to be filled mutatis mutandis.