General Terms and Conditions
COMMON GROUND is a project of KOMA Elektronik GmbH
KOMA Elektronik GmbH – Weise Strasse 24 12049 Berlin-Neuköln Germany
Managing Directors: Wouter Jaspers, Christian Zollner
Registered Office: Berlin, Germany
Court of Registration: Amtgericht Berlin-Charlottenburg
Registration Number: HRB 145453
§ 1 General
- Our deliveries, services, and offers are made solely on the basis of these General Terms and Conditions. They are a component of all contracts that we conclude with our Contractual Partners (also called “Customer(s)” in the following) for the goods or services we offer. They also apply to all future goods, services, or offers to the Customer, even if they are not agreed to again separately.
- We do not recognise opposing or deviating terms and conditions of the Contractual Partners unless we have expressly agreed to their validity in writing.
- These General Terms and Conditions are also applicable in the event that we carry out a delivery without reservation with the knowledge of these opposing or deviating terms and conditions of the Customer.
§ 2 Offer, Order, Offer Documents
- All of our offers are subject to change and are non-binding insofar as they are not expressly labelled as binding in writing or include a certain deadline for acceptance. The order of the Customer is an offer to us to conclude a contract for purchase. With our receipt of the Customer’s order we will send a written or electronic order confirmation first that confirms our receipt of the order insofar as the subject of the order is not a software or music download. This order confirmation is not an acceptance of the Customer’s offer yet; rather, it merely confirms that we have received the order. Therefore, the contents of the order confirmation are not binding for us. This applies in particular insofar as the order confirmation contains incorrect information on account of automated processing (for example errors in prices or calculations). A binding contract only arises when we ship the ordered product to the Customer and the shipment to the Customer has been confirmed by means of a written or electronic shipping confirmation. In the event of a software or music download, a binding contract only arises with the receipt of the goods or the invoice, depending on which occurs first. Our written or electronic confirmation of shipment or, in the case of downloads, invoice, is solely authoritative for the scope of delivery. Ancillary agreements or changes require our written or electronic confirmation for their validity.
- Changes to the subject of delivery, in particular those of a technical nature, remain reserved insofar as (i) the subject of delivery is not significantly changed and the changes are not unreasonable for the Customer or (ii) we have not expressly agreed in writing with the Customer that the information about the subject of the delivery or service is binding.
- Insofar as nothing else is expressly agreed in writing, information about the subject of the delivery or service as well as the related representations are not guaranteed by us. If the Customer is a business person in the sense of § 14 of the German Civil Code (BGB), they are not a description of the target quality without our express written or electronic agreement. Without another written or electronic promise from us, this concerns merely an non-binding description or labelling of the delivery or service from which deviations are allowed pursuant to the regulations of the first clause of this § 2 (1). This applies in particular even if such information is included in our brochures or price lists or we provide information about technical data and the characteristics of the goods on our informational pages in the internet. In the event that we have agreed to the target quality of the delivery or service with the Customer in a binding manner, changes by us remain allowed to the extent that they take place on account of compulsory legal requirements and are reasonable for the Customer. In the event that they are unreasonable, the Customer has the right to withdraw from the contract. Further going claims are excluded.
- Insofar as we have made an offer to the Customer that has been expressly designated as binding, we are bound to it for 2 (two) weeks insofar as nothing else has been expressly communicated in writing.
- We retain all rights, in particular copyrights, to any and all documents, illustrations, etc. provided to the Customer. The Customer may only use them in the scope of the contractually intended purpose.
- Insofar as the Customer is not legally competent, we assume that the agreement of his legal representative is at hand for the order he makes or that the Customer brought about the ordered service with money that his legal representative made available to him or which was provided with the legal representative’s approval by a third party for this purpose or for free disposal.
§ 3 Prices, Conditions of Payment
- The prices agreed between us and the Customer apply only for the scope of delivery and service in our respective shipping confirmation. Any additional or special performances will be charged separately.
- Insofar as our Contractual Partner is a business person within the meaning of § 14 BGB and we have not expressly agreed to something else in writing (e.g. via our price list), the prices are in Euros ex works Voerde or Hong Kong (Incoterms 2010) without the statutory value-added tax and packaging.
- If no prepayment is arranged, all invoiced amounts are, unless nothing else is expressly agreed in writing, due without any deduction whatsoever within 30 (thirty) days after the invoice date. Our receipt of the payment is authoritative for payment having been made in a timely manner. Payments are always credited against the oldest still-open invoice. The deduction of a trade discount requires a separate written agreement. If the Customer is a consumer within the meaning of § 13 BGB, applicable in deviation is that payment obligations – insofar as no other agreement is made expressly in writing – are always to be fulfilled by means of advance payment.
- If the Customer does not pay by the due date and the Customer is a merchant within the meaning of the German Commercial Code (HGB), the remaining amounts bear interest at the amount of 5% p.a. from the due date. If the Customer is partially or completely in arrears with its duty to pay, then it is to pay interest on arrears in the amount of 5 (five) points above the base rate on the due claims for payment without prejudice to our other rights. If the Customer is a business person within the meaning of § 14 BGB, the interest on arrears amounts to 8 (eight) points above the base rate in deviation from this.
- The Customer is only entitled to set off with counterclaims if the counterclaims are established by court of law, undisputed, or recognised by us. Furthermore, it is only allowed to exercise a right of retention insofar as its counterclaim is due and based on the same contractual relationship.
- Insofar as we have not already agreed to advance payment with the Customer, we are entitled to demand pre-payment or payment of a security by the Customer before we carry out outstanding deliveries if circumstances become known that in our diligent judgment are suited to substantially reduce the creditworthiness of the Customer and which would endanger payment of our open, due claims by the Customer from the respective contractual relationship includes those from other individual orders insofar as they are on the basis of the same legal relationship.
- Insofar as nothing else was expressly agreed in writing with the Customer, all payments are to be made solely to us in € (Euros).
§ 4 Customs and Duties, Import Value-Added Tax
If the Customer has its domicile outside Germany and the subject of the delivery is therefore imported into another country, customs and duties or import value-added tax are collected on which we have no influence and the amount of which we cannot assess in advance. Such customs or import duties or import value-added taxes are to be borne by the Customer and will not be assumed by us. The Customer should liaise with the competent customs office for more information about the customs, import duties, or import value-added taxes arising in the individual cases, because customs regulations vary from country to country. As an importer, the Customer must comply with the respective local regulations. We reserve the right to simply the customs procedures by making statements about the value in the package towards customs. Customs is, however, also entitled to open packages for the sake of simplicity. We have no influence in respect of this.
§ 5 Right of Withdrawal
If you are a consumer, you have a right of withdrawal in the event of distance contracts within the meaning of § 312b BGB pursuant to the following conditions:
Right of withdrawal
You have the right to withdraw from this contract within 14 (fourteen) days without giving any reason.
The withdrawal period will expire after 14 (fourteen) days from the day
- a) of the conclusion of the contract. [cases of a contract of digital content which is not supplied on a tangible medium]
- b) on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the goods. [cases of a sales contract]
- c) on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the last good. [cases of a contract relating to multiple goods ordered by the consumer in one order and delivered separately]
To exercise the right of withdrawal, you must inform us
KOMA Elektronik GmbH Weise Strasse 24 12049 Berlin Germany
Tel.: +49 (0) 30 91557028
of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You may use the attached model withdrawal form, but it is not obligatory.
Model Withdrawal Form
(complete and return this form only if you wish to withdraw from the contract)
— KOMA Elektronik GmbH, Weise Strasse 24, 12049 Berlin, Germany
— I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods (*)/for the provision of the following service (*),
— Ordered on (*)/received on (*),
— Name of consumer(s),
— Address of consumer(s),
— Signature of consumer(s) (only if this form is notified on paper),
(*) Delete as appropriate.
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
Effects of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 (fourteen) days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement. We may withhold reimbursement until we have received the goods back or you have supplied evidence of having sent back the goods, whichever is the earliest.
You shall send back the goods or hand them over to
KOMA Elektronik GmbH
Weise Strasse 24
without undue delay and in any event not later than 14 (fourteen) days from the day on which you communicate your withdrawal from this contract to us. The deadline is met if you send back the goods before the period of 14 (fourteen) days has expired.
The customer will bear the cost of returning the goods.
You are only liable for any diminished value of the goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the goods.
- 1. We ask you to return the product with its original packing and materials, if any.
- 2. a) The right of withdrawal is not in effect for distance contracts for the delivery of audio or video recordings or software insofar as the seals of the delivered data media have been opened by you as well as in the event of distance contracts of digital content which is not supplied on a tangible medium after your express permission that the contract should take effect before the withdrawal period expires whereas you are aware that the right of withdrawal expires when the contract takes effect. b) The right of withdrawal is not in effect for distance service contracts after the service has been fully performed if the performance has begun with your prior express consent, and with the acknowledgement that you will lose your right of withdrawal once the contract has been fully performed by us.
- 3. Notwithstanding the above the following applies: If the shipment is sent to a country outside the EU, and the Customer chooses to exercise the right of withdrawal, the Customer has to bear the costs for shipment. The same applies for costs resulted according to § 4. KOMA Elektronik GmbH reserves the right to deduct these costs from the refund of the purchase price Customer paid.
§ 6 Delivery and Delivery Period
- The beginning of the delivery period assumes the final clarification of all technical questions with the Customer as well as the provision by the Customer of any documents, permits, and authorizations to be obtained by the Customer as well as the receipt of any agreed pre-payment or security, and by payment of the purchase price of the goods by means of advance payment in the case of consumers within the meaning of § 13 BGB. Our shipping confirmation is authoritative for delivery periods. The periods or dates for deliveries and services contained therein are only binding to the extent that a fixed period or fixed deadline is expressly promised or agreed there or if we have expressly confirmed a period or deadline as binding separately in writing or via email. Other periods and deadlines mentioned by us are non-binding.
- Depending on the kind of subject of the delivery and the manner of sales deliveries occur either by means of physical shipment or by means of download by the Customer.
- Insofar as the Customer is a business person within the meaning of § 14 BGB and we have not expressly agreed to something else in writing, the delivery period has been adhered to when we have made the subject of the delivery available at our own plant by the expiry of the deadline and announce readiness to ship to the Customer or have handed it over to the transport provider. In the event of delivery by means of download, the delivery period has been adhered to if we have made it possible for the Customer to download the subject of the delivery by expiry of the period.
- We are entitled to refuse handover to the transporting party if secure loading cannot be guaranteed pursuant to the respectively applicable VDI guidelines for loading on account of the condition of the transporting vehicle provided by the transporting party or if, according to our due consideration, it does not satisfy the requirements that must be fulfilled pursuant to the German Road Traffic Registration Regulations (StVZO) or the respective relevant national regulations in order for the vehicle to be operated on public roads. If we refuse handover to the transporting party for the reasons named above, the regulations pursuant to § 7 apply in the corresponding manner.
- Partial deliveries or partial services are allowed in a reasonable scope if such is usable by Customer in the scope of the contractual purpose, the delivery of the remainder of the goods is ensured, and no additional expenses or significant additional effort arises for the Customer on account of this. The following applies with regard to shipping expenses: If the Customer is a consumer within the meaning of § 13 BGB, no additional shipping expenses arise for the Customer in the event of partial deliveries. If the Customer is a business person within the meaning of § 14 BGB and we have not expressly agreed to something else in writing, in the event of partial deliveries we will charge the shipping expenses at cost.
- Insofar as we are in arrears with a delivery or service or a delivery or service is impossible, the Customer is entitled to withdraw from the contract pursuant to the statutory provisions. We are only liable for damages in the event of arrears or impossibility pursuant to the provisions in § 9 of these General Terms and Conditions.
- A force majeure event entitles us to delay the delivery or service for the period of the hindrance and a reasonable start-up period or to withdraw in part or whole from the part of the contract not fulfilled yet. Natural catastrophes, strikes, lock-outs, political unrest, or other unforeseeable circumstances that make timely delivery or performance impossible despite reasonable efforts are considered a force majeure event. This also applies if the hindrances named above arise at a subcontractor of ours or arise while we are in arrears. We will inform the Customer without delay in the event that a force majeure within the meaning of this § 6 arises. The Customer can demand that we declare within 6 (six) weeks whether we will withdraw from the contract in whole or in part or deliver within a reasonable grace period with regard to the as yet unfilled part of the contract. If we do not make a declaration within the period named by the Customer, the Customer can withdraw from the part of the contract that has not been fulfilled yet.
§ 7 Packing, Shipping, Transfer of Risk and Acceptance of the Goods by the Customer
- Insofar as not expressly otherwise agreed in writing, we are free to choose the kind of packaging according to our discretion.
- If the Customer is a business person within the meaning of § 14 BGB, the risk of accidental loss and accidental deterioration is transferred to the Customer at the latest with the dispatch of the goods to the shipper, freighter, or person named for shipment by the Customer or at the time of download by the Customer. This also applies in the event of partial deliveries. If the Customer is a consumer within the meaning of § 13 BGB, the risk of accidental loss and accidental deterioration is transferred to the Customer at the latest with receipt of the goods by the Customer – regardless of whether in physical form or by means of download.
- Furthermore, if the Customer is a business person within the meaning of § 14 BGB, it is in acceptance arrears if we have announced readiness to ship and the Customer refuses to take over the goods on the named date or it does not pick the goods up or have them picked up by a transporting party on the named date.
- If the Customer is unable to accept delivery or breaches any of Customer’s other obligations under these Terms and Conditions, we are entitled to request reimbursement of the damage we have incurred from such event, including all potentially incurred extra charges. In this case the risk of accidental loss or accidental deterioration of the subject of purchase is transferred to the Customer. After the setting and fruitless elapsing of a reasonable period, we are also entitled to dispose of the subject of delivery in another manner and make a delivery to the Customer with a reasonably prolonged period.
- The subject of the delivery will only be insured against theft, breakage, shipping damages, fire damages, water damages, and other insurable risks upon express request of the Customer at its expense.
§ 8 Warranty
For consumers the legal warranty applies.
- Insofar as the Customer is a merchant within the meaning of the German Commercial Code (HGB), its claims for defects assume that it adhered to its statutory duties to inspect and make notices of defects in an orderly manner. In this case the Customer must declare any notices of defects to us in writing with exact information about the kind and scope of the defect so that it is possible for us to check whether the notice of defects is just. In particular, the Customer is to inspect the delivered goods without delay after they arrive for shipping damages and note damages found on the delivery slip, have this notification signed by the transporting party, and inform us about this in writing, too.
- Insofar as there is a defect in the subject of the delivery, we are entitled according to our own choice – in the event that the Customer is a consumer within the meaning of § 13 BGB: According to the choice of the Customer – to rectification of defects or replacement delivery. In doing so, we are to bear the expenditures necessary for remedy of fulfillment pursuant to the legal regulations.
- If the Customer is a business person within the meaning of § 14 BGB and the Customer makes justified claims for expenses against us in conjunction with the remedy of fulfillment that arise from the use of its own employees or items, then the claims for reimbursement of the Customer are limited to the extent of its own expenses. If the Customer is a business person within the meaning of § 14 BGB and the expenses necessary for the purposes of remedy of fulfillment are increased because the subject of delivery was brought to a location other than the location of delivery on account of the Customer, additional expenses arising on account of this are to be borne by the Customer.
- A replacement delivery by us assumes that the buyer returns the defective subject of delivery concurrently and – insofar as the Customer is a business person within the meaning of § 14 BGB – pays reimbursement for the value of utilization.
- If we are not willing to rectify defects or make a replacement delivery or are unable to do so, or when it would take an unreasonable period of time due to reasons outside our control, or if rectification of defects fails in a final manner for any other reasons, the Customer is entitled to withdraw from the contract or demand reduction of the purchase price according to its choice. In the event of withdrawal, we are obligated to refund of the paid purchase price only concurrently against return of the defective subject of delivery and payment of reimbursement for the value of utilisation by the Customer.
- The right to withdraw of the Customer in the event of defects in the goods is excluded in cases in which the Customer is unable to return the received performance and this is not because the return is impossible on account of the nature of the received performance or a defect was only revealed after processing or transformation of the goods. In the event of the delivery of defective goods or in the event of partial deliveries, the Customer is entitled to withdrawal from the entire contract or reimbursement for damages instead of the entire performance pursuant to the regulations of the following § 9 only if it has no interest in the supplied performance from an objective point of view.
- For significant third-party products that are a component of the subject of delivery or the delivery, for example the software of other manufacturers, our liability is limited to the assignment of the claims to which we are entitled against the manufacturer of the third-party product. Should the claim made against the manufacturer of the third-party product fail for reasons for which the Customer is not responsible (for example the insolvency of the supplier), then the Customer is entitled to claims on account of defection pursuant to the regulations of this § 8.
- If the Customer is a business person within the meaning of § 14 BGB, the following applies in deviation from § 8: If the Customer has sold the subject of delivery to a consumer within the meaning of § 13 BGB (“sale of consumer goods”) and the subject of the delivery has to be recalled from the consumer on account of a defect or the consumer has reduced the purchase price, then the Customer can demand, according to its choice, rectification of defects or replacement delivery, withdraw from the contract, or reduce the purchase price. § 8 (4) and (5) do not apply in this case.
- The Customer is then solely entitled to claims for damages pursuant to the regulations of the following § 9.
- The warranty lapses if the Customer modifies the goods or has a third party modify them without our prior agreement and this makes rectification of defects impossible or unreasonably difficult. In any case, the Customer is to bear the arising additional expenses for rectification of defects on account of the modification. In particular, no liability will be assumed for damages that arose on account of the following reasons:
- Improper use, improper handling;
- Unsuitable operating conditions;
- Improper installation, start up, or use by the Customer or third parties to the extent that the owner’s manual or instructions provided by use are not incorrect;
- Modifications on the subject of delivery by the Customer or a third party;
- Improper or negligent handling.
- If the Customer is a business person within the meaning of § 14 BGB, the statute of limitations for claims for remedy of fulfillment, withdrawal, and reduction in price on account of defects in the subject of delivery amounts to one year from transfer of risk. If the Customer is a consumer within the meaning of § 13 BGB, the statute of limitations for claims for remedy of fulfillment, withdrawal, and reduction in price on account of defects in the subject of delivery amounts to two years from transfer of risk in deviation from this. If the Customer is a business person within the meaning of § 14 BGB and it sold the subject of delivery to a consumer within the meaning of § 13 BGB (“sale of consumer goods”), the above statute of limitations for the claims of the Customer named above which are made by the consumer on account of a defect in the subject of delivery are based on the statutory provisions for the sale of consumer goods. The following regulation in § 9 is applicable to the statute of limitations for claims for damages that involve defects in the subject of the delivery.
§ 9 Damages
- We are solely liable for damages regardless of legal reason, in particular from impossibility, arrears, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations, or for tortious acts pursuant to the regulations of this § 9. For the rest, any liability for damages is excluded.
- We are liable in the scope of the statutory provisions on account of intentional or grossly negligent actions of our legal representatives or managers, on account of injury to life, limb, or health, and for guaranteed characteristics and pursuant to the provisions of the German Product Liability Act (Produkthaftungsgesetz).
- Furthermore, we are liable
- For damages from the slightly negligent breach of material contractual obligations by our legal representatives, managers, and other agents;
- a) For damages that were caused by our simple agents grossly negligently or intentionally without breach of duties material to the contract. b)For damages from the slightly negligent breach of material contractual obligations by our legal representatives, managers, and other agents;
- Material contractual duties are those for which fulfillment makes orderly fulfillment of the contract possible in the first place and adherence to which the Customer regularly counts on and may count on.
- Our liability for damages pursuant to § 9 above is limited to the amount of damages that are typical of the contract and foreseeable.
- Insofar as our Customer is not an end customer, our liability pursuant to § 9 above is excluded insofar as the Customer has limited its own liability towards its customer in an effective manner. In doing so, the Customer will make its best effort to agree to limitations of liability against its own customers to the extent legally allowed – also for our benefit.
- Furthermore, in the scope of our liability pursuant to § 9 above, indirect damages and consequential damages that are a consequence of defects in the subject of delivery can only be reimbursed to the extent that such damages are typically to be expected during proper use of the subject of delivery.
- Claims for damages on account of lost profit are excluded in any case.
- Insofar as we give technical information or act as consultants and this information or advice does not belong to the scope of performance owed by us and contractually agreed, this occurs at no charge and to the exclusion of any liability whatsoever.
- In the scope of our liability pursuant to § 9 above, we are only liable for loss of data only, if, and insofar as the Customer has ensured with a backup copy or in another manner that the data can be restored with a reasonable amount of effort. In this case, our liability is limited to the effort for recovery. We are generally not liable for the loss of data if and insofar as the Customer is responsible for them.
- Insofar as the Customer wishes to make a claim pursuant to the regulation above, it will inform us and consult with us in a comprehensive manner without delay. The Customer is to give us the opportunity to inspect the damage event.
- The regulation on the exclusion of warranty in § 8 of these General Terms and Conditions applies in the corresponding manner.
- The time barring period for claims for damages on account of defective delivery amounts to one year after transfer of risk. The time barring period for claims for damages on account of the breach of other contractual duties amounts to one year after the end of the year in which the claim arose and the Customer gains knowledge of the circumstances founding the claim and gained knowledge of the debtor party or must have gained knowledge of it without gross negligence. In the event of injury to life, limb, or health, for damages pursuant to the German Product Liability Act, and for those caused by the fraudulent conduct, intention, gross negligence, or negligent breach of material contractual duties within the meaning of § 9 of our legal representatives, managers, or agents, the statutory statute of limitations is applicable in deviation from this. If the Customer is a business person within the meaning of § 14 BGB and it sells the subject of delivery to a consumer within the meaning of § 13 BGB (“sale of consumer goods”), the statute of limitations for the claim to reimbursement for expenditures pursuant to § 478 (2) BGB amounts to two years from the time when we delivered the subject of delivery to the Customer.
§ 10 Retention of Title
- If our Contractual Partner is a business person within the meaning of § 14 BGB, the goods remain our property until complete payment of all claims from the business relationship including those arising in the future, also from contracts concluded simultaneously or later. This also applies if individual or all of our claims were collected by us in a current account and the balance has been drawn and recognized.
- In the event of contracts with consumers within the meaning of § 13 BGB, we retain ownership of the goods until complete payment of the purchase price.
- If we withdraw from the contract on account of culpable conduct of the Customer in breach of contract, in particular on account of late payment, the Customer is to bear all expenses for repossession of the subject of the delivery by us. After repossession of the goods, we are authorized to dispose of them; the utilization proceeds are to be set off against the liabilities of the Customer with deduction of reasonable utilization expenses.
- In the event of pledging of the goods subject to retention of title or other encroachments by third parties, the Customer is to inform us without delay and make all necessary declarations and inform the third party about the existing ownership circumstances. The Customer may not pledge the subject of delivery or assign it as a security. The Customer is also obligated to treat the subject of the delivery with care; it is especially obligated to insure them itself sufficiently at the original value against loss and damage and destruction, including fire, water and theft.
- If the Contractual Partner is a business person within the meaning of § 14 BGB, it is entitled to sell the purchased item in the ordinary course of business; however it already assigns to us all claims in the amount of the final invoiced amount with all ancillary rights that arise for it from the further sale against its customer or third party. The Customer remains entitled to collect this receivable even after assignment. We may collect the receivable ourselves in the Customer is in arrears with its duties to pay us or if the Customer is insolvent or has made an application to open insolvency proceedings. In this case the Customer is obligated to inform us of the receivables assigned and the respective debtors, state all details necessary for debt claim recovery, hand over all documents pertaining and notify the debtors (third parties) of the assignment.
- We obligate ourselves to release the securities to which we are entitled upon request of the Customer to the extent that the realizable value of our securities with consideration for the assessment deductions typical for banks exceed the value of the claims to be secured by more than 20%; in doing so the wholesale price for goods and the nominal value of claims are to be assumed. The choice of securities to be released in incumbent upon us.
§ 11 License Rights
- The contents on the KOMA Elektronik GmbH website that are labelled as not for sale (in particular audio recordings, pictures, videos), are protected by copyright and intended for demonstration purposes only. They may not be downloaded and/or used in any other way without the agreement of KOMA Elektronik GmbH.
- Prerequisite for use of the software manufactured by KOMA Elektronik GmbH itself is the agreement to the regulations of the end user license agreement (EULA) of KOMA Elektronik GmbH as well as any additional license agreements (including those of third parties as the case may be).
§ 12 Intellectual and Industrial Property Rights
- Insofar as nothing else has been expressly agreed in writing, we only warrant that the subject of delivery does not infringe the intellectual and industrial property rights of third parties (in the following: “Copyrights”) in the country of delivery unless we are positively aware of Copyright infringements at the domicile of the Customer or in another such country that the Customer has reported to us in writing where the subject of delivery is to be brought in an orderly manner. Insofar as a third party makes claims against the Customer on account of breach of Copyright by products delivered by us and used in a contractual manner, we are liable to the Customer in the scope of the regulation in clause 1 as follows:
- The Customer is to inform us of the Copyright infringements claimed by the third party without delay in writing. We will fulfil, defend against, or end these claims with a settlement at our own expense according to our own discretion. To do so, the Customer grants us the sole authority for the legal defence and settlement negotiations and will issue us the powers of attorney necessary for this purpose in individual cases including the right to issue corresponding sub-powers of attorney.
- Insofar as the delivery constitutes a Copyright infringement within the meaning of described above, we will rectify the reason for the Copyright infringement within a reasonable period. According to our choice at our expense for the concerned performance, we will either induce a right of use, change the subject of delivery so that the Copyright is not infringed, or exchange it. The provisions of § 8 apply to in the corresponding manner to this extent.
- If the rectification of the Copyright infringement fails or if the rectification is not possible under reasonable conditions or unreasonable for the Customer, the Customer is entitled to the statutory right of withdrawal or price reductions. Claims for damages of the Customer against us are based on § 9 of these General Terms and Conditions.
- We are not liable for the claims of third parties on account of Copyright infringements insofar as they are caused by special requests of the Customer, a use not foreseen by us, or on account of the fact that the Customer or an unauthorized third party changed the subject of delivery or it is not being used under the recommended conditions or under the agreed conditions or together with products not delivered by us. In general, we are not liable for the claims of third parties on account of Copyright infringements insofar as the Customer is responsible for this. Should third parties make claims against us with regard to this, the Customer shall release us from them.
- We are also not liable to the Customer if the Customer acknowledges the infringement towards the third party without our prior agreement or in the event that it discontinues use of the product without informing the third party that the discontinuation of use does not constitute acknowledgement of a Copyright infringement.
- The regulations on the statute of limitations from § 8 and § 9 apply in the corresponding manner.
§ 13 Data Protection
The order processing is done with the help of automatic data processing. We collect, process, and use personal data of the Customer in the scope of order processing as well as during activation and registration of the software. For order processing we may transmit the personal data of the Customer to third parties that may have their domicile outside of the EU (for example, service providers in the USA). Furthermore, we save, process, and use the personal data of the Customer in an anonymised or pseudonymised manner in order to continuously improve our offerings for our Customers. Further information about the kind, scope, and purpose of the collection, processing, and use of the personal data of our Customers is contained in our data protection declaration.
§ 14 Legal Venue, Place of Performance
Insofar as the Customer is a merchant within the meaning of the HGB or a legal entity under public law or a special fund under public law, the legal venue and place of performance is Berlin, Germany. We are entitled, though, to file suit against the Customer at its place of residence or domicile.
§ 15 Applicable Law
All contracts with us are subject to the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CSIG), whereas Customers regularly residing abroad may as well rely on mandatory applicable laws of the state where they are a resident. The contractual language is German insofar as nothing else is agreed upon in writing.
§ 16 Final Provisions
Insofar as these General Terms and Conditions determine that declarations of intent or announcements are to occur in writing, the written form is also fulfilled by the use of the text form, i.e. by fax or email.