1.1 These terms and conditions of sale shall apply exclusively to all sales and services (Products according to the pricelist e.g. hardware , software, professional services) to merchants, governmental entities, or special governmental estates within the meaning of sec. 310 para. 1 BGB (German Civil Code) ( hereinafter referred to Customer).
1.2 Differing or contrary terms shall not apply, except if expressly agreed upon in writing by VOIPFUTURE. They shall also apply if VOIPFUTURE without reservation performs delivery (Products according to the pricelist e.g. hardware, software, professionals services) despite its knowledge of differing or contrary terms.
1.3 These terms and conditions of sale shall also govern all future transactions between the parties.
2. Object of Agreement, Closure
2.1 The object of agreement consists of the offer, any duties agreed upon between the parties as well as any contractual documents or records in connection with the terms and conditions of VOIPFUTURE.
2.2 Orders must be in writing.
2.3 Insofar as the order constitutes an offer within the meaning of § 145 BGB it may be accepted by VOIPFUTURE within 2 (two) weeks. The acceptance of the order by VOIPFUTURE will either be by written agreement or order confirmation or by delivery.
2.4 Any addition, alteration or special request of the customer after the order has been confirmed has to be in writing. Within two weeks VOIPFUTURE will forward an alternative offer or declare its expressed consent to the alterations.
2.5 If the customer does not accept the alternative offer set out above 2.4. The customer is obliged to object in writing within 2 (two) weeks of receipt of the alternative offer. If the customer objects, the agreement will take effect unchanged. If the customer does not object within two weeks, the supplementary offer will be the object of the agreement. VOIPFUTURE will advise customer of this in its alternative offer. Any already fixed period of delivery will be subject to 4.2.
3. Prices and Terms of Payment
3.1 Prices are ex work (EXW Incoterms 2010), and do not include statutory VAT, VAT will be set out separately in the invoice at the then applicable statutory rate.
3.2 All prices and fees are payable in EURO. Any discount or discount for prompt payment has to be agreed upon in writing.
3.3 VOIPFUTURE reserves its right to accept checks and bills of exchange. They will only be accepted in account for performance. Any fees due will be charged to the customer.
3.4 Provided there is no other agreement in writing between the parties, or VOIPFUTURE stated otherwise in the order acceptance, payment on the invoice is due within 30 (thirty) days after receipt of the invoice for hardware and software, and within 14 days for professional and other services. VOIPFUTURE though may request advance payment or down payment.
3.5 The customer shall only be entitled to offset insofar as the customer’s counterclaim is acknowledged, undisputed or assessed in a legally binding judgment.
3.6 Furthermore the statutory stipulations apply for delayed payment.
4.1 Periods for delivery will be negotiated individually for each order. The period for delivery will only start if necessary technical questions have been clarified and the customer has fulfilled all its contractually necessary cooperation obligations. Defenses based on non-performance of the contract are reserved.
4.2 If 2.4 applies, the periods for delivery will be prolonged appropriately.
5. Cost for Transport, Handling and Packaging, Risk for Goods
5.1 The delivery is ex-work (EXW Incoterms 2010) by VOIPFUTURE, unless the parties have agreed otherwise in writing. If the customer sends the goods back, the customer pays for all transport, handling and packaging costs etc.
5.2 Since the sale is ex work (EXW Incoterms 2010), VOIPFUTURE will, if customer requests provide transport insurance for the transport at the costs of customer.
6.1 VOIPFUTURE emphasizes that due to the state of development of software, it is not possible to create software without any faults. Software delivered by VOIPFUTURE is not deemed to non-conform, if the software complies with the contractual requirements with regard to the function set out in the product description and the requirements set out in the contractual documents and requirement paper. Warranty for non-conformity of the software will only be granted if the software does not perform a task it is made for, the mistake is reproducible or able to reconstruct and the non-conformity impairs the functionality for the customer not only insubstantially. VOIPFUTURE hereby advises the customer, that some software products are equipped with a license protection mechanism, which enables to monitor the traffic volume and , if the contractually licensed volume is exceeded, it may occur that the functions of the hardware or software are impaired. These impairments are not covered by warranty. Non-conformity of software is also not deemed, if the malfunction is due to hardware defects, insufficient hardware capacity e.g. if further software licenses or other functionalities are added , defects in other software, not subject to the performance of VOIPFUTURE, false application, non-license conform application or other inappropriate usage, the failure of system components, defect data or resulting from special external influences which are not subject to the sales contract. Liability of VOIPFUTURE for a certain characteristic is only incurred if the characteristic has been agreed upon in writing. The customer is obliged to describe the assumed fault as detailed and comprehensively as possible.
6.2 In case of non-conformity of the software VOIPFUTURE is entitled to alternative performance in the form of remedy of the defect or delivery of conforming goods. If VOIPFUTURE obtains knowledge from third parties of a defect in the software, which may affect the performance of the software, VOIPFUTURE is entitled to remedy the defect at its own costs.
6.3 In case of non-conformity of hardware VOIPFUTURE is entitled to alternative performance in the form of remedy of the defect or delivery of conforming hardware.
6.4 If such alternative performance by VOIPFUTURE (6.2. and 6.3.) has failed, the customer is entitled to reduce the purchase price or to withdraw from the contract with no further claim to damages.
6.5 Customer cannot claim warranty rights for con-conformity of the products (hardware, software) if, after delivery, non-conformity bases on the usual tear and wear or the defect is subject to faulty or negligent treatment, excessive or not contractually agreed strain, the improper use of working material or other external influences which are not contractually agreed upon. If the malfunction of the contractual products is due to inappropriate changes or maintenance by the customer or a third party, the customer is precluded from exercising warranty rights. 6.6 Precondition for any warranty claim of the customer is the customer’s full compliance with all requirements regarding inspection and objection established by sec. 377 HGB (German Commercial Code) and it is not a non-conformance, which was recognizable.
7.1 In case of intent or gross negligence on VOIPFUTURE’s part or by VOIPFUTURE’s agents or assistants in performance VOIPFUTURE is liable according to the provisions of applicable law; the same applies in case of breach of fundamental contractual obligations.
7.2 To the extent the breach of fundamental contractual obligations is caused by simple negligence, VOIPFUTURE’s liability for damages shall be limited to the typically predictable damage up to a maximum amount of 50% of the order value. A fundamental contractual obligation is any obligation necessary for the proper fulfillment of the sales contract and the parties have trusted the other party to fulfill. In all other cases of simple negligence VOIPFUTURE shall not be liable.
7.3 VOIPFUTUR’s liability for culpable damage to life, body or health as well as its liability under the Product Liability Act shall remain unaffected.
7.4 Any liability of VOIPFUTURE not expressly provided for above shall be disclaimed.
7.5 No responsibility of either party shall accrue if non-fulfillment was caused by force-majeur, in particular natural catastrophe, strike or other labor disputes by employees of VOIPFUTURE or third parties of whom VOIPFUTURE relies on, in order to fulfill its contractual obligations and VOIPFUTURE or the third party is not responsible for, or action taken by governmental authorities or if material shortage occurs, in as far as these circumstances have not been know or should have been known by either party at the closing of the sales contract.
7.6 The customer has to take suitable measures to ensure that no data-loss occurs, he is in particular obliged to daily make back-up copies of all its programs and data in machine readable form. VOIPFUTURE will not be liable for any loss of data or programs, if upon fulfillment of the above requirements the loss would have not occurred. Any liability of VOIPFUTURE for lost data and programs is subject to the above restrictions.
7.7 Claims for damages, subject to 7.1 are limited to 2 (two) years. The limitation period starts when the claim accrues and the injured party has positive knowledge of the damage.
7.8 The above restrictions on liability apply also to employees and other representatives, such as agents of VOIPFUTURE.
8. Defects in Title
8.1 If a third party claims the infringement of any intellectual property rights (patents, utility patent, copyright, trademark rights, design patent) customer shall inform VOIPFUTURE immediately in writing, if the use of the contractual products (hardware, software) or the license (below 9.) is affected or prohibited.
8.2 VOIPFUTURE’s liability for defects in title for hardware is subject to the statutory provisions.
8.3 If defects in title for software occur, VOIPFUTURE will pursue at its own discretion all legitimate measures to defend its rights and either at its own expense pursue legal action or settlement, or reimburse all costs of customer to pursue legal action or remedy the defect in title to customer,
a) customer has informed VOIPFUTURE immediately of the defect in title in writing; and
b) VOIPFUTURE was empowered to take full and only control over the adequate measures taken; and
c) the customer at the expense of VOIPFUTURE assists VOIPFUTURE adequately to defend its rights.
8.4 If a third party obtained a non-disputable title denying customer the right to use the software, or parts thereof, VOIPFUTURE will at its due discretion and at its own costs provide customer with a new right to use the software or at its own costs change the contractual product (software) in such a manner, that no intellectual property rights of third parties are infringed, provided and to the extent, that this does not impair the warranted functionality of the software. If neither of the above mentioned solution is feasible, VOIPFUTURE will take back the software, reimbursing the purchase price under deduction of a reasonable amount for usage considering the time the software was in use by customer.
8.5 Claims of the customer under 8.2 , 8.3 and 8.4 do not arise, if the defect in title results from the use of the contractual product (hardware, software) in infringement of these general terms and conditions of sale, the license granted or the sales contract, or if the contractual products (hardware, software) are used in connection with other products (hardware, software), accessories and/or data which were not provided for by VOIPFUTURE or set out for in the contractual documents, or if contractual products or parts hereof have been modified by customer or a third party or if customer continued the use of the contractual products, even though VOIPFUTURE had provided customer with a modified version of the contractual product and intellectual property rights of third parties would not have been infringed by the use of these substitute products.
9. Retention of Title, Licenses
9.1 VOIPFUTURE retains title to the hardware products until receipt of all payments in full. Until full payment, the software license is only granted for testing purposes and is revocable.
9.2 VOIPFUTURE grants to the customer as an end-user the non-exclusive, non-transferable right to use, to copy, to revise and to decompile the software subject to 9.3-9.5 of these T&C’s without limitation in time, manner or place subject to the sales agreement. The right to use and exploit is limited to the purposes in particular the scope and traffic volume of the license granted as described in the sales agreement.
9.3 The right to copy the software granted to the customer is limited to the installation of the software on a computer system which is in customer’s immediate possession and to fulfill the purpose of use and a copy thereof which is required for the loading, display, running, transfer or storage of the software as well as to the right for an authorized person to make a copy for security backup purposes, as stated in sec. 69 d para. (2) UrhG (German Copyright Act).
9.4 The right to revise the software subject to the license granted to customer is limited to the maintenance or reinstatement of the agreed functionality of the software.
9.5 The right to decompile the software granted to the customer herein is only granted under the terms of sec. 69 e para. (1) no. 1 to 3 UrhG and within the limits of sec. 69 e para. (2) nos. 1 to 3 UrhG
9.6 If licenses are granted for a specific traffic volume, the customer is obliged to regularly, at least once in a year, verify, if the actual traffic volume still is corresponding to the licensed traffic volume and to report the results to VOIPFUTURE. If the traffic volume exceeds the licensed traffic volume the customer is obliged to report to VOIPFUTURE immediately and ensure an appropriate licensing , as case may be by stocking up the license. (See 6.1)
9.7 VOIPFUTURE retains the title to all copies of the software until receipt of all payments in full. Upon breach of contract by customer, in particular on default of payment, VOIPFUTURE shall be entitled to request at customer’s expense the return of all copies of the software in which VOIPFUTURE has retained title, or if applicable, to demand the assignment of customer’s right of return against third parties. In such case upon VOIPFUTURE’s request customer shall confirm in writing that no copies of the software or of copies thereof were retained and that all installations of the software have been irrevocably deleted from customer’s or third party’s systems. Before the unconditional transfer of ownership, customer shall only dispose of rights in the software with the written consent of VOIPFUTURE.
10.1 In as far as these terms and conditions of sale require for orders, confirmations, notices etc. written form the respective document may be transmitted by facsimile or email PDF.
10.2 Place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be the courts of Hamburg, while VOIPFUTURE reserves the right to choose the legal venue of the agent.
10.3 This contract shall be governed by the laws of the Federal Republic of Germany, excluding the Convention on Contracts for the International Sale of Goods and international private law.
10.4 The legal invalidity or ineffectiveness of a clause in these terms and conditions of sale shall not affect the validity of the remaining clauses. The parties shall be obligated to replace the invalid or ineffective clause by a valid clause that comes closest to the intended economic meaning and the contractual purpose.