1.1 Area of validity
(1) Unless expressly agreed otherwise in writing, these general terms and conditions (hereinafter referred to as ‚GTC‘) are applied to all business relations between us, xplace GmbH, Tuchmacherweg 12, 37079 Göttingen, Germany (entered in the company register of the District Court of Göttingen under registry number HRB 3649) and our customers in connection with the sale or rental of the physical digital signage solutions offered by us (hereinafter referred to as ‚Hardware‘), the rental provision of the software we offer (together hereinafter referred to as ‚Merchandise‘) as well as the provision of the services listed in these GTC. The GTC are also valid if an adjustment of our offer, regardless of the form, does not specifically refer to them in each case. These GTC apply exclusively to companies, legal persons under public law or special funds under public law in the sense of sections 14, 310 of the German Civil Code (BGB). Relevant in each case is the valid version of these GCT at the time the contract is executed.
(2) In principle, the customer‘s general terms and conditions are not applicable unless we agree on their validity explicitly in writing. Conditions that deviate from our GCT do not become a component of the contract, even in case of an unconditional order acceptance and execution.
(3) The general conditions in sub-section 1 (‚General terms and conditions‘) and sub-section 3 (‚Final provisions‘) apply to all business relations in the sense of paragraph 1. The special conditions from sub-section 2 (‚Special Conditions‘) are applied with priority for the rental provision of software, services under a work contract in connection with the assembly / installation or other services, including the on-site service.
1.2. Contract execution / order acceptance
(1) Our offers are non-binding unless and insofar as we do not provide any explicit written confirmations. In principle, contracts are only formed through a written order confirmation or through the shipping of the merchandise or the due provision of services.
(2) Due to the constant technical development and improvement of our merchandise and services, we reserve the right to make changes in the design and execution that deviate from the specifications provided in the scope of our offers, if these changes are only insignificant and our merchandise and services are guaranteed to have at least equivalent quality. This applies particularly insofar as the corresponding changes serve to maintain the delivery capacity.
(3) We reserve the right to transfer our own service provision or parts thereof to third-party providers or assistants for independent completion.
(1) Delivery times and deadlines provided by us are only considered to be obligatorily agreed on if we have explicitly confirmed them in writing. Otherwise the communicated periods and dates are only to be considered as approximate delivery dates. The delivery period starts at the earliest with our order confirmation but not before the provisioning of the necessary specifications and transfer of the required documents by the customer. In case of an obligatorily agreed on delivery period, the period is considered adhered to if the delivered item was sent before the expiration of the period or if the readiness for shipping was communicated to the customer in accordance with a previous arrangement.
(2) All of the agreed on delivery periods are under the restriction of correct and timely self-delivery if and insofar as the non-delivery cannot be attributable to us. In case of non-availability or only partial availability, we will notify the customer immediately. If there are delivery delays caused by a force majeure or other operational malfunctions that are not attributable to us, the respective agreed-on delivery period extends by an appropriate amount. We will immediately notify the customer about the occurrence of any corresponding events that cause significant delays in the delivery. In cases in which we are demonstrably responsible for a non-compliance with agreed-on delivery periods, the customer, after setting a grace period of at least four (4) weeks, is entitled to the right of withdrawal for all deliveries that have not been sent by the end of the delivery period or about whose readiness for delivery the customer has not been informed yet.
(3) Partial deliveries are permitted to an extent that is reasonable for the customer unless something else has been explicitly agreed on in writing.
1.4. Shipping and transfer of risk
(1) Deliveries from us are generally completed from the factory or warehouse to the site specified by the customer during the order placement. The customer bears the shipping and packing costs. Unless another arrangement has been agreed on, we determine the shipping method, transport route and the company assigned to the shipping at our reasonable discretion. For transnational merchandise transport, we exclusively provide the shipments for pick-up ‚EXW Göttingen‘ (Incoterms® 2010) unless another arrangement has been arranged in individual cases.
(2) If nothing else has been agreed on, the risk associated with the conclusion of a purchase or factory shipment contract is transferred to the customer at the time at which the merchandise is handed over to the forwarding agent or freight carrier, but at the latest when it leaves the factory or warehouse. This also applies in a case in which we diverge from paragraph 1 and bear the shipping costs. Delivery is also deemed to be completed if the customer is in delay with the acceptance. If the shipping of the merchandise is delayed by circumstances attributable to the customer, the risk is transferred to the customer as soon as the merchandise is ready for shipping. Partial deliveries are considered independent deliveries in terms of the transfer of risk. In case the customer delays the acceptance, it has to bear the associated costs, especially potential return or storage costs.
1.5. Prices / payment conditions
(1) Unless agreed otherwise, the prices disclosed by us apply from the factory or warehouse in addition to the legal value-added tax (VAT). Bills are always due immediately without any deduction. The crediting to our account is decisive. A discount deduction is only permissible if expressly agreed on by us in writing. Changes or additions to an order after the order confirmation, especially changes to our merchandise and services in the design and execution upon the customer‘s request entitle us to a price adjustment. The customer will bear any additional costs. Licensing fees, particularly for software solutions and content, are billed yearly in advance unless a different arrangement has been agreed on. If the parties are concluding a service contract about services to be rendered and no other conditions are agreed on, the customer pays these off through advance payments of monthly fees. The customer is billed separately for each technician assignment as part of an on-site service, unless these assignments are explicitly agreed on as an obligatory provision in the service contract.
(2) If there is a payment delay, rebates, discounts and any other benefits agreed on in individual cases become void. In case payment is delayed, we reserve the right to demand advance payments and/or claim a right of retention for additional ser-vices. If, after the conclusion of the contract, we become aware of circumstances that may lower the customer‘s creditworthiness and endanger our claims towards the customer, all receivables become due immediately without consideration of the granted payment dates. Furthermore, such circumstances entitle us to only perform still pending deliveries or services in return for collateral security or to withdraw from the contract. In case of a payment delay, we are entitled to charge the customer default interests in the amount of currently 9% points above the basic interest rate (section 288 BGB). Other claims for damages remain unaffected.
(3) The customer is entitled to the right of retention and the right to compensation only insofar as the customer‘s counter-claims to our payment claim are uncontested or recognized as legally binding.
(4) If the agreed-on delivery time is more than four (4) months, we reserve the right to alter prices to a reasonable extent, if following the conclusion of the contract any verifiable significant cost reductions or increases occur, for example as a result of wage agreements or material price changes. If the price is increased by more than 20%, the customer is entitled to withdraw from the contract.
1.6. Conditional sale
(1) All of the merchandise delivered by us as part of a purchase agreement remains our property until the complete payment of all claims, including all secondary claims, arising from the business relation with the customer (‚reserved goods‘). In case of a breach of the contract by the customer, particularly a delay of payment, we are entitled to demand the reserved goods and revoke the granted usage rights for rented hardware and software or rented content. The assertion of any claim for restitution is only to be regarded as a withdrawal from the contract if we explicitly state this in writing.
(2) Until the ownership of the purchased merchandise is transferred to the customer, the customer is obligated to treat it with care and store it without charge. The customer is also obligated to sufficiently insure the merchandise at its original value against damages arising from fire, water or theft at the customer‘s own cost.
1.7. Reports of defects, warranty and liability
(1) The legal warranty period is strictly one (1) year and starts with the day of the transfer. If subsequent repairs or deliveries are made within the scope of the warranty, this does not trigger a new start date for the warranty period. Upon delivery, the buyer must immediately inspect the delivered merchandise for defects, condition and potentially warranted characteristics. We must be notified of any apparent defects in writing within ten (10) calendar days from the transfer; otherwise the received merchandise is considered approved. If a non-apparent defect is noticed subsequently, the customer is entitled to notify us of this defect within ten (10) calendar days after the discovery, otherwise the merchandise is considered approved in consideration of this defect as well. In any case, section 377 of the German Commercial Code (HGB) remains unaffected. The inadequate delivery articles, at our choice, must be sent back to us or made available for our inspection in the same condition as when the defect was discovered. Only the delivery slip is decisive for the scope and subject of the delivery. If the actual delivery according to the delivery slip does not correspond to the offer previously accepted by the customer, the delivered merchandise is considered approved by the customer, if the customer accepts the delivered goods without reservation and does not object within the aforementioned time period.
(2) In case of a justified report of defects, we will decide on a rectification of the defective merchandise or a replacement at our reasonable discretion. Multiple rectifications are permitted. Insofar as this is not associated with disproportionately high costs, we bear the expenses required to remedy the defect (section 439, paragraph 3, BGB). The customer is obligated to grant us an appropriate period for the necessary supplementary service (rectification or replacement). If the supplementary service has ultimately failed, the customer is entitled to withdraw from the contract or demand a reduction according to the customer‘s choice.
(3) The warranty excludes damages which are not the result of our service, such as those due to regular wear and tear or the customer‘s or its assistants‘ inadequate installation and assembly work, defective activation, defective and/or negligent treatment or maintenance or improper use.
(4) We are liable without restriction for intentional or gross negligence and for damages arising from culpable injury to life, body or health, as well as in the scope of guarantees assumed in writing and the strict liability under the German Product Liability Act. We are also liable in case of a breach of significant contractual obligations, i.e. such obligations which actually enable the fulfillment of the proper execution of the respective contract, the fulfillment of which the customer relies on and may rely on regularly, as well as in case of a lack of warranted characteristics. In each case, the liability is limited to the damages that are foreseeable and typical for the contract at the time of the conclusion of the contract. Without prejudice to the aforementioned cases, our liability is excluded, particularly for compensation for damages in addition to or instead of the performance, from unlawful acts, for compensation for other indirect or direct damage including potential auxiliary or secondary damages as well as for compensation for futile expenses. The aforementioned limitations of liability also apply to the personal liability by our legal representatives, employees and in case of the employment of executing assistants.
(5) If the customer does not accept the delivered merchandise despite its obligation to accept it, or if we voluntarily accept the return of the merchandise on the customer‘s request (‚courtesy return‘), we are entitled, as per our choice, to demand flat-rate compensatory damages in the amount of 20% of the originally owed total price according to the order confirmation instead of a specific calculation of damages. The same applies if we accept the return of merchandise by exercising our rights from the conditional sale (clause 6). The customer is entitled to prove a potentially smaller damage. We, in turn, are entitled to demand a proven higher damage. The customer will bear the shipping costs for the return of merchandise.
(6) Insofar as we have granted the customer a warranty, all warranty claims for the merchandise are cancelled if the cus-tomer or a third party makes any changes or repair work on the merchandise without our permission. Legal warranty claims remain unaffected according to the provisions of these GCT.
1.8. Intellectual property rights / intellectual ownership
(1) All intellectual property rights (in particular copyright, trademark, design and other proprietary rights) to the delivered merchandise, including individual components and spare parts, the software including source code and its components, the content, the work results and other components of our services are owned by us or third parties. Likewise, the designs, samples, drawings, etc. produced by us remain our intellectual property.
(2) Any rights of the customer to third-party content and technologies provided by the customer are unaffected. The customer exempts us from any claims by third parties that are based on an unlawful use of customer-provided or customer-specified technologies (e.g. software, hardware components) and/or provided third-party content which may have been installed or integrated in our merchandise, software or services on instructions or requests by the customer. This also includes the reimbursement of the costs of necessary legal representation.
(3) Unless stipulated otherwise, we are the exclusive owners of all copyright-related usage rights and other commercial proprietary rights or other rights to the services and work provided by us in the scope of the business relationship, regardless of the nature (including the right to register as patent, design patent or brand). However, we subsequently transfer a revocable, individual, non-exclusive right of use for the respective service or work results to the customer for the duration of the business relationship. This transfer is free of charge, since the customer has paid for it by paying the prices stated in the order confirmation.
(1) The customer exempts us from claims of third parties that are based on an unlawful use of the merchandise provided by us, including that of the provided software, or claims which results from data-protection, copyright or other legal disputes that are caused by the customer and associated with a corresponding use. This also includes the reimbursement of the costs of necessary legal representation.
(2) We have no influence on contents which the customer alone enters into the systems provided by us and potentially broadcasts through them. The customer therefore assumes full responsibility for their legal permissibility. The broadcast of various contents, such as a pay-TV offer, requires the conclusion of a separate contract with the respective third-party provider. As far as contractually agreed on, we perform services for the merchandise provided by us, but not for services agreed on between the third-party provider and the customer. The customer already exempts us from all claims– especially those arising from violations of the copyright or competition law – which are made against us by a third party due to an unlawful use of the merchandise we provided to the customer. This also includes the reimbursement of the costs of necessary legal representation.