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General Terms and Conditions
DEKOM AG (Head office, Germany)
§ 1 Area of applicability and changes to the general terms and conditions
(1) These general terms and conditions govern the contractual relationship established between the customer and DEKOM AG, Kellerbleek 3, 22529 Ham- burg regarding deliveries and performances by DEKOM AG. In addition, the service terms and conditions and specific terms and conditions of hire shall also apply insofar as they are effectively included in the contractual relationship.
(2) No verbal subsidiary agreements have been made. The customer shall be notified in writing of changes to these general terms and conditions, perfor- mance descriptions and to service and specific conditions of hire due to offers by DEKOM AG. If, in the event of a continuing obligation, the customer does not respond to DEKOM AG’s proposal and/or does not object to it within a month following receipt of the notification of change, this shall be deemed acceptance of the proposal and the changes shall become effective, provided that DEKOM AG has expressly indicated this consequence to the customer in the notification of change.
(3) Customer terms and conditions which differ from these terms and conditions shall not apply. They shall remain inapplicable even if they are not expressly rejected by DEKOM AG, or if DEKOM AG provides deliveries or performances unconditionally.
§ 2 Conclusion of the contractual relationship
All quotes provided by DEKOM AG are non-binding and subject to confirmation. A contractual relationship shall be established when the customer places an order by telephone, in writing or electronically (fax, post, email) and DEKOM AG subsequently confirms the order in writing, and shall be governed solely by the content of the order confirmation and DEKOM AG’s general terms and conditions. DEKOM AG reserves the right to deviate from this contract, even after confirmation of the order, where such deviations are minor, technically unavoidable and not unreasonable to the customer.
§ 3 Prices/payment
(1) The prices stated by DEKOM AG on the customer quote, plus statutory VAT at the current rate (shown separately), shall apply. If no prices were expressly provided to the customer, the latest applicable price list shall apply. Shipping and insurance costs shall be borne by the customer.
(2) Payments for deliveries and performances shall be due on receipt of the invoice. All payments shall be made to DEKOM AG’s registered office.
(3) In addition to the agreed payment, DEKOM AG shall be entitled to reimbursement for necessary expenses incurred while providing the performances agreed upon in the contract, particularly travel and subsistence costs. DEKOM AG shall indicate these separately on the invoice.
(4) DEKOM AG shall invoice payments primarily on a monthly basis. Where expenses are billed, invoices shall contain details of the number of hours wor- ked, the daily rate at which the employee’s services are charged, and a description of the expenses billed and to be reimbursed. The terms agreed in the respective contract shall apply to the billing method for all other performances.
(5) DEKOM AG reserves the right to refuse to accept cheques or bills of exchange as a method of payment. In all cases, cheques or bills of exchange shall only be accepted as conditional payments. The costs associated with processing these payments shall be borne by the customer. The entitlement to payment shall expire on clearance of the check or bill of exchange.
(6) If there are multiple invoices outstanding against the customer, and a payment from the customer is not sufficient to settle all of their accounts, the payment shall be applied according to legal regulations (§ 366 para. 2 of the German Civil Code) even if the customer has expressly made the payment against a particular invoice.
§ 4 Scope of supply and performance
(1) The parts of the performance to be provided or the items to be delivered by DEKOM AG to the customer shall be specified in detail in the order con- firmation.
(2) The stated delivery dates shall be non-binding, unless otherwise expressly agreed in writing. They shall be subject to the customer’s timely fulfilment of all obligations necessary for timely delivery.
(3) Should performance from a third party be required during installation of the delivery item, this preliminary performance may lengthen the delivery time. DEKOM AG’s obligations regarding performance and performance time shall be subject to DEKOM AG receiving correct and timely provision of the preliminary performance. The same shall apply to strikes, lock-outs and other instances of force majeure, and to governmental orders.
(4) In order to withdraw from the contract due to failure to meet a delivery deadline, the customer must have issued a written reminder after expiry of the delivery deadline and set an appropriate grace period. Claims for damages due to late delivery shall not be accepted unless the delay was caused by gross negligence or wilful intent on the part of DEKOM AG.
(5) Unless otherwise expressly agreed, DEKOM AG shall be entitled to make partial deliveries.
§ 5 Installation and hire of video conferencing systems
(1) Following a separate written agreement, DEKOM AG shall provide installation of video conferencing systems in return for payment of expenses based on the latest applicable DEKOM AG price list.
(2) In the event that DEKOM AG provides a free trial installation, DEKOM AG shall be entitled to require the trial goods to be returned at any time. The goods must be returned in the condition stipulated in the contract. If the customer does not return the goods when requested, DEKOM AG may require compensation for use to be paid in line with the latest price list. The customer’s liability for damage to the trial installation due to non-contractual use shall be unlimited in the event of negligence or wilful intent. DEKOM AG shall be liable only in the event of gross negligence or wilful intent. Mainte- nance and operation costs incurred during the trial installation shall be borne by the customer.
(3) All presentations and other advisory services provided by DEKOM AG shall be non-binding, unless otherwise agreed. DEKOM AG reserves the right to invoice for reasonable compensation of expenses. All product training requested shall be subject to a fee.
(4) Hire of video conferencing systems from DEKOM AG shall be subject to the specific conditions of hire and the latest applicable price list. Hire of premises shall be subject to a separate written agreement.
§ 6 Transfer of risk
(1) Dispatch shall be ex warehouse at the customer’s expense and risk, even if free delivery has been agreed or if DEKOM AG is to carry out the installation. Risk shall transfer to the customer on handover of the goods to the carrier. The choice of the shipping route and shipping method shall be at DEKOM AG’s discretion. DEKOM AG may also assign the task of shipping to their own employees. The customer shall be responsible for arranging transportation insurance.
(2) Should dispatch be delayed due to the customer’s actions, the risk shall transfer to the customer when they are notified that the goods are ready for dispatch.
§ 7 Acceptance of work
(1) Work performed by DEKOM AG must be accepted in accordance with this provision. This shall not apply to services to be provided by DEKOM AG , particularly consulting and other support services, unless the order confirmation expressly specifies that acceptance is required.
(2) DEKOM AG shall notify the customer in writing that the delivery or performance is ready for acceptance.
(3) If acceptance is impossible due to the nature of the delivery or performance, completion shall take the place of acceptance.
(4) DEKOM AG may submit partial deliveries or partial performances for acceptance (partial acceptances). A partial acceptance may occur for instance after:
completion of a self-contained work phase, or
provision of self-contained, independently functional parts of the performance.
(3) The acceptance terms shall apply mutatis mutandis for partial acceptances. Where partial acceptances are required, DEKOM AG shall be entitled to withhold further partial deliveries and performances for as long as the customer is in arrears with the acceptance of partial deliveries or performances, or with payment for accepted partial deliveries or performances.
§ 8 Retention of title
(1) DEKOM AG shall retain ownership of items delivered by DEKOM AG (retained goods) until receivables arising from the business relationship with the customer are paid. Transfer of the retained goods to a third party shall be permitted only if this occurs in the ordinary course of the customer’s business,and if they retain ownership of the retained goods until payment of all receivables arising from the business relationship with the third party. The custo- mer shall not be entitled to pledge the retained goods or use them as security. The customer shall handle retained goods with care. DEKOM AG must be notified immediately if the retained goods are seized, damaged or lost, and in the event that the customer relocates their business premises. Should the customer materially breach these obligations, DEKOM AG may withdraw from the contract. In the event of late payment by the customer, DEKOM AG shall furthermore be entitled to take back and sell the retained goods, and to credit the amount obtained from the sale against existing claims; the same shall apply in the event of a deterioration in the customer’s financial situation which does not become apparent until after concluding the contract and which poses a risk to the customer’s counterperformance.
(2) The customer hereby assigns to DEKOM AG their receivables from resale of the goods up to the amount owed to DEKOM AG by the customer, together with all ancillary rights. DEKOM AG hereby accepts this assignment. Until revoked, the customer shall be entitled to collect assigned receivables in their own name; revocation shall only be permissible if the customer is in arrears with payment.
(3) Until full payment of the agreed price, DEKOM AG shall be entitled to adequately insure the retained goods against theft, destruction and damage, at the customer’s expense, unless the customer can provide DEKOM AG with evidence that they have taken out such adequate insurance at their own expense.
§ 9 Distance contracts
DEKOM AG will only enter into contractual relationships with business customers. Furthermore, DEKOM AG will only provide access to the DEKOM AG online shop and sales advice to tradesmen, contractors and freelancers with registered businesses. Regulations on doorstep selling and distance contracts (§ 312 ff. of the German Civil Code), including the two week right of withdrawal are therefore not applicable.
§ 10 Right to withdraw from contract, contractual penalty
(1) DEKOM AG shall be entitled to withdraw from the contract in the following cases:
a) in the event of non-delivery by an upstream supplier, through no fault of DEKOM AG;
b) in the event of force majeure such as industrial disputes, natural disasters and comparable events which, for more than a temporary period, signifi-
cantly hinders or prevent DEKOM AG from providing services;
c) if unfavourable circumstances relating to the customer’s financial situation or creditworthiness are discovered in retrospect;
d) in the event that the customer provides inaccurate details of their financial situation or creditworthiness which would significantly jeopardise the
purpose of the contract;
e) in the event that the customer or the customer’s businesses breaches the contract through unethical behaviour or unlawful acts.
(2) In the event of claims for damages by DEKOM AG due to impossibility of performance caused by the customer, or due to withdrawal from the contract on legal or contractual grounds for which the customer is responsible (points 1c-e), DEKOM AG shall be entitled to flat-rate damages amounting to 25% of the respective contractual payment, unless the customer can provide evidence that the damages incurred were lower. The right to assert further claims for damages shall remain unaffected.
§ 11 Arrears, deterioration of customer’s financial situation
(1) If a payment deadline is exceeded, DEKOM AG shall be entitled to charge interest at 8% p.a. above the base rate from the start of the arrears and without a reminder. The right to assert further claims shall remain unaffected.
(2) Should the customer be in arrears with payment of an invoice, or should their financial situation have deteriorated significantly since concluding the contract, all liabilities towards DEKOM AG shall become due with immediate effect. DEKOM AG shall be entitled to require payment in advance before making any outstanding deliveries.
(3) Should the customer be in arrears with payment of a substantial portion of the price or fee owed for two consecutive months, DEKOM AG may, without notice, terminate the contract in which the arrears have occurred.
§ 12 Warranty and inspection and notification duties for purchases
(1) The customer shall inspect the goods immediately upon receipt, and record any externally visible shipping damage, shipping defects or incorrect delive- ries on the shipping documents. All delivered goods shall be inspected for completeness, including with regard to individual components. Quantitative discrepancies or defects identifiable on delivery must be reported to DEKOM AG in writing within three days following receipt of the goods. Defects or damage which are not externally visible must be reported in writing within the statutory warranty period of twelve months following receipt of the goods. The defective item must be stored securely and without modification. Further instructions should be obtained from DEKOM AG. If the goods are returned, they must be suitably packaged for shipping.
(2) If the delivered goods are defective, DEKOM AG shall be obligated to provide subsequent performance. In the event of failed subsequent performance for newly manufactured goods, the customer may reserve the right to a reduction or to withdraw from the contract, at their discretion. The customer shall grant DEKOM AG reasonable time and opportunity for subsequent performance. The customer may only require delivery of a non-defective item after two attempts to repair the defective device have failed. Moreover, DEKOM AG may refuse the method of subsequent performance chosen by the customer if it is only possible with disproportionate costs.
(3) The warranty shall not extend to natural wear or damage caused by improper handling of the goods. The warranty shall also not apply if operating and maintenance instructions are ignored or followed incorrectly, if consumables are used which do not meet the original specifications, or if the product is altered by the customer or a third party, unless the warranty claim is not based on the aforementioned reasons and the modification does not cause unreasonable difficulties in rectifying the defect.
(4) If DEKOM AG issues a guarantee for the quality of the goods, the guarantee period shall begin when the customer receives the invoice.
§ 13 Warranty for service contracts
(1) Should the work performed by DEKOM AG be defective, the customer may require the defect to be rectified within an appropriate period of time. Defects shall be rectified by repair or replacement, at DEKOM AG’s discretion. Software defects with a material impact on the intended use shall, at DE- KOM AG’s discretion and depending on the significance of the fault, be rectified either by supplying an improved version of the software or by providing instructions for eliminating or circumventing the effects of the fault.
(2) The customer is obligated to notify DEKOM AG immediately of apparent defects. Liability for damages due to a delay in rectifying defects shall only apply if the customer provided timely notification of the apparent defect. DEKOM AG shall be notified of defects in writing immediately after the customer becomes aware of them, with a comprehensive description of the error indications and where possible written documentation, hard copies or other data illustrating the defect.
(3) If the customer is responsible for the defect, or a defect reported by the customer does not exist, DEKOM AG shall be entitled to require reimbursement from the customer of the costs incurred in rectifying the defect.
(4) DEKOM AG may refuse repairs, replacements or compensation until the customer has paid DEKOM AG the agreed price, less an amount corresponding to the economic value of the defect or guaranteed feature.
(5) Should attempts to rectify the defect fail, the customer shall be entitled to require a free of charge contract modification or a price reduction. Rectifi- cation of the defect shall not be deemed to have failed until two repair attempts have been unsuccessful. § 12 para. 3 shall otherwise apply mutatis mutandis for work performed.
§ 14 Liability
(1) DEKOM AG’s liability shall be unlimited in the event of gross negligence or wilful intent.
(2) DEKOM AG shall be liable for damages resulting from an absence of guaranteed features in the amount of the customer’s financial interest which was covered by the purpose of the assurance and apparent to DEKOM AG when the features were guaranteed.
(3) In the event of a slightly negligent breach of material contractual obligations which are indispensable to achieving the purpose of the contract, and with which the customer must therefore be able to expect strict compliance, DEKOM AG shall, in accordance with statutory provisions, be liable only for such contract-specific damages as were foreseeable by DEKOM AG on conclusion of the contract, up to a limit of €5,000.
(4) DEKOM AG shall otherwise accept no liability on any legal grounds.
(5) The aforementioned liability limits shall not apply if DEKOM AG is liable under the German Product Liability Act, or for damages arising from death, physical injury or damage to health caused wilfully or through gross negligence.
(6) DEKOM AG shall not be liable to the customer for the legality of items supplied to the customer, or the absence of defects in these items. Should claims be asserted against DEKOM AG by third parties, including the authorities, due to the illegality or defectiveness of such items, the customer shall indemnify DEKOM AG in this respect.
§ 15 Rights of use for IT services
(1) Unless IT services are otherwise contractually stipulated in individual cases, DEKOM AG shall supply the customer with software in the form of machine- readable object code, along with user documentation as per the relevant agreement with the customer in accordance with the order confirmation (“licence”).
(2) The licence is a single, non-transferrable licence solely for the use of the customer within the terms of the contract, and may only be used with the products supplied by DEKOM AG. The right of use includes the right:
to use the supplied computer or video communications programs on the customer’s IT system, or in the event of a breakdown, on a backup system.
to make copies for archive purposes, as replacements or for troubleshooting. If the originals carry a copyright notice, the customer must also affix this to the copies.
to use the documentation to support the customer’s use of the supplied computer and video communications programs, and
for third party companies (e.g. system integrators) to install, integrate and implement the supplied computer or video communications programs
on behalf of the customer.
(3) The customer’s right to translate, edit or otherwise alter the licence requires express written consent in all cases. The customer shall not be entitled to decompile, disassemble or reverse engineer the supplied computer or video communications programs, or use any other method to generate the source code.
(4) Supplementary to these terms of use, the relevant manufacturer’s terms of use, which were delivered to the customer with the software, shall also apply.
§ 16 Intellectual property rights
(1) The customer is obligated to notify DEKOM AG immediately in the event that a product supplied by DEKOM AG breaches intellectual property rights. The customer shall support DEKOM AG in a reasonable manner during any potential disputes with rights holders.
(2) Conversely, the customer shall defend or indemnify DEKOM AG against all claims by rights holders against DEKOM AG which arise as a result of a rights infringement where DEKOM AG was following the customer’s instructions.
§ 17 Customer’s obligation to cooperate
(1) The customer shall ensure that all cooperation required from the customer or their agents is provided in a timely manner and, unless otherwise expressly stipulated in the order confirmation, free of charge for DEKOM AG.
(2) The customer shall immediately provide DEKOM AG with all information required by DEKOM AG in order to deliver the agreed performance. The custo- mer shall also inform DEKOM AG of any significant changes during the term of this contractual relationship.
(3) The customer shall afford DEKOM AG employees all necessary assistance when working on the customer’s premises, and shall provide them with the necessary access to any property required.
(4) The customer shall provide DEKOM AG with the name of a contact who will be available to DEKOM AG employees in the event of any questions while carrying out the contract, and who is authorised to provide clarifications regarding performance delivery and make decisions.
(5) Data media provided by the customer must have no technical or content problems, and be free of harmful software (e.g. viruses). If this should not be the case, the customer shall compensate DEKOM AG for any resulting damages and indemnify DEKOM AG against any third party claims.
(6) The customer shall keep copies of all documents and data media supplied to DEKOM AG , which DEKOM AG may access at any time, free of charge.
(7) The customer shall grant DEKOM AG the right to use and modify third party systems, insofar as this is necessary in order to deliver the performance required under the relevant contract.
§ 18 Change requests
(1) Changes or additions to the content or scope of performance required from DEKOM AG under the contract may be proposed by either contracting party to the other contracting party. The proposal must include at least the following details:
a concrete specification of the change or addition,
justification from a professional and IT perspective and the expected impact on processes and scheduling, and
estimated costs, including costs which have been or will be incurred for reviewing the change or addition request.
(2) The other contracting party shall review the proposal and provide their opinion to the proposing party. The decision to implement the proposal for a change or addition shall be made by the customer. DEKOM AG may refuse to implement a proposal for a change or addition if it is technically unfeasible or involves disproportionate, unreasonable costs.
(3) Taking the latest applicable DEKOM AG price list as a basis, DEKOM AG shall be entitled to additional expense-related compensation for any additional costs they incur by implementing the change or addition request or by carrying out the change request process.
§ 19 Hardware buy-back
(1) In order for DEKOM AG to buy back used hardware, this must be requested using the order form provided. Any buy-back of used hardware is subject to a separate contract, to which these terms and conditions are applicable. However, buy-back is only possible when purchasing a new device at the same time, as specified on the order form.
(2) A payment or voucher may only be issued after DEKOM AG has received and tested the used device. DEKOM AG reserves the right to refuse to accept used devices if they are unserviceable or do not match the details on the order form, or if these details are incomplete.
§ 20 Test purchases (“Try & Buy”)
(1) If a transaction is expressly indicated as “Try & Buy” on the order confirmation, the customer shall have the right to return goods identified as “Try & Buy” to DEKOM AG, Kellerbleek 3, D-22529 Hamburg within 30 days after receipt or - the event they are installed by DEKOM AG - installation of the goods. The time that the goods are received by DEKOM AG shall be used to determine whether the deadline has been met. The goods must be properly packed for shipment and returned in the original packaging. The risks and costs of returns shall be borne by the sender. The customer shall be reimbursed in full for the agreed purchase price of the returned goods. Installation, service and transport costs shall be borne by the customer. In principle, accessories shall not included in “Try & Buy” transactions, unless expressly agreed as such.
(2) All rights of use concerning the software and other proprietary rights shall expire on return of the goods. Copies of the software are not permitted during the trial period. Trademarks may not be removed.
(3) The right of withdrawal under para. 1 and rights of use under para. 2 are not transferrable to third parties. Should the customer sell or transfer the goods to a third party during the trial period, the right of withdrawal shall expire. In the event of substantial damage to or loss of the goods (e.g. loss or theft), DEKOM AG may also require the agreed purchase price to be paid in full.
§ 21 Set-off, assignment, right of retention
(1) The customer may only offset claims by DEKOM AG with claims that are undisputed or have been established as legally valid.
(2) The customer may only transfer claims to which they are entitled to third parties with prior written consent from DEKOM AG.
(3) The customer shall only be entitled to assert a right of retention on the basis of counterclaims directly arising from the respective contractual relationship. Moreover, the customer may only assert a right of retention on the basis of counterclaims against DEKOM AG if these counterclaims are undisputed or have been established as legally valid.
§ 22 Data protection
(1) The customer and DEKOM AG are obligated to respect statutory data protection regulations when fulfilling the contractual relationship, and to require their employees to comply with these regulations. The contracting parties undertake, on request, to provide their respective data protection officers with evidence, in the legally required format, of their compliance with these regulations.
(2) DEKOM and affiliated companies will collect, process and use the customer’s personal data (inventory data) and usage and billing data in an automated process, insofar as this is required in order to establish, shape the content of or modify the contractual relationship, pursuant to §§ 5 para. 1, 6 para. 1, 18 para. 1 and 19 para. 1 of the Interstate Agreement on Media Services.
(3) DEKOM AG shall regularly inform the customer of new products and services related to telecommunications services. The customer may opt out of any further mailings or information at any time.
(4) If you have ordered a product from us, we will store your data for order processing in accordance with the legal provisions of the BDSG, German Com- mercial Code and the AO. We also use your data in this case in the context of the legal provisions to provide you with advertising on other products. Of course you can object at any time by phone, email or letter to such promotional use of your customer data like.
§ 23 Final provisions
(1) Changes or additions to this contractual relationship must be made in writing. Amendments or supplements that do not satisfy this requirement shall be void. This also applies to changes in the written form requirement.
(2) In the event of force majeure which significantly hinders or prevents performance or fulfilment of an obligation by one of the contracting parties, the affected party shall be entitled to postpone this obligation for the duration of the obstruction and an for appropriate start-up time. Industrial disputes within the contracting parties’ companies or industrial disputes in third party companies and similar situations which directly or indirectly affect the contracting parties shall be considered as force majeure.
(3) DEKOM AG may make use of third parties, in particular affiliated companies, as agents in fulfilling their delivery and performance obligations. This shall not affect DEKOM AG’s contractual obligations.
(4) The laws of the Federal Republic of Germany shall apply to all legal relationships between DEKOM AG and the customer. If the legal relationship is in- ternational, and the parties are commercial entities, the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980 shall apply.
(5) Hamburg is agreed as the sole place of jurisdiction, provided that the customer is a merchant as defined by the German Commercial Code and the con- tract forms a part of their business, or the customer has no registered office or place of residence in the Federal Republic of Germany when legal action is taken. DEKOM AG shall be entitled to bring action before any other legally competent court instead of a court in the place of jurisdiction agreed above.
(6) If any clause in these general terms and conditions should be or become invalid, the validity of the remaining clauses shall not be affected. In such a case, the contracting parties shall be obligated to cooperate in drawing up provisions which will achieve a legally valid result that comes as close as possible to the intent of the invalid clause.
§ 24 Special considerations regarding Cloud services and Cloud contracts
DEKOM, its affiliates, suppliers and resellers make no assurances or warranties with respect to the results to be obtained from the use of Cloud Services, or with respect to the accuracy or reliability of any information obtained through Cloud Services, or that Cloud Services will meet the requirements of users, or that Cloud Services will be uninterrupted, timely, secure or uninterruptedly accessible. Your use of the Cloud Services is at your own risk.
Downloading or otherwise obtaining materials and/or data through the Cloud Services, is done at your own discretion and risk. You are solely responsible for any damages you incur as a result of your use of the Cloud Services. You assume all risk arising from the use or performance of the Services. DEKOM cannot guarantee and does not promise any specific results from the use of the Cloud Services. Use is at your own risk.
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