Terms and conditions

§ 1 Application of these terms

(1)Our deliveries and services are subject to the following terms and conditions of trade. These terms and conditions of trade only apply to merchants in the sense of article 310 of the German Civil Code. We do not accept opposing terms and conditions on the part of our customer or terms and conditions deviating from our terms and conditions of trade unless such agreement is given expressly and in writing.
(2)These general terms and conditions also apply to all future business transaction with our customer, as long as its concerns related legal transactions.

§ 2 Offers and conclusion of contract

(1)Offers are subject to change and are not binding. No contract has been made until our written confirmation of order has been given. The contract requires – to become valid - the signature of Com4voice and the customer. Amendments or modifications of contract must also be confirmed in writing by the customer in order to be valid.
(2)For the entire contents and the realisation of the contract, are binding only as far as this was confirmed in writing in the contract or in the confirmation of the order.

§ 3 Documentation

All documents relating to the contract shall remain the property of Com4voice. Drawings, technical documents or other technical information received by the customer shall not be used for any other purpose, than mentioned in the contract, without the written consent of Com4voice. They may not be used or copied, reproduced, transmitted or communicated to a third party. If we do not accept the customer’s offer within the time limit mentioned in §2, these documents have to be sent back to us immediately.

§ 4 Prices and Payment

(1)Unless agreed upon otherwise in written, our prices are valid for deliveries from stock, excluding costs for packaging, insurance, transport, but plus the value added tax applicable in the Federal Republic of Germany.
(2)The prices mentioned in our offer are based on our valid price list at the time when our offer is made.
(3)The payment of the purchase price has to take place on the account named in the bill. The cash discount is only valid if agreed in written.The payment of the purchase price has to take place on the account named in the bill. The cash discount is only valid if agreed in written.
(4)Unless agreed otherwise in written, payments have to be paid within 10 days after delivery. If there is an undue delay in the payment, delinquency interest in the amount of 8% over the basic rate of interest at all time shall be paid. The right to claim additional damages caused by the delay is reserved.
(5)We are entitled to increase the purchase price (because of changed wages, material and marketing costs), if prices should increase three months or later after the contract was made.

§ 5 Right of set-off and retention

The customer can only declare set-off, when his counter claims are determined to be undisputed or final and conclusive. The customer can assert the right of retention only when his counterclaim is based on the same contractual relationship.

§ 6 Delivery and services

(1)The beginning of the delivery period boasted by Com4voice presupposes the clarification
Of all technical questions as well as the timely and proper fulfilment of the customers
obligations. The objection of a not fulfilled contract is required.
(2)If the customer comes in assumption delay, or he neglects other participation duties, we are entitled to demand replacement for the damage, including additional expenditures. Further claims are reserved. If preceded requirements are available, the danger of to the danger of an accidental downfall or an accidental deterioration of the purchase passes over to the customer, at that time, he came into assumption delay or debtor delay.
(3)Further legal claims and rights of the customer because of a delivery-delay remain
Untouched.
(4)Delivery and service times extend in an appropriate scope that can not be averted by Com4voice despite reasonable diligence. Including the following occurrences of unforeseen events, such as: war, revolution, strikes, failure of supplies of power, fuel, transport, equipment or other goods of services, natural disasters, unacceptable weather conditions, acts of government, traffic accidents, export or import prohibitions, fire, explosions, floods, accidents, sabotage, civil commodation, riots and breakage or loss during transportation or storage, as well as delays or deliveries by the subcontractors.
(5)The observance of delivery time and performance time, presupposes the timely and proper fulfilment of the contract and participation duties of the customer. If the customer is in delay, the delivery and the performance time are interrupted. The service performance of Com4voice is under the reservation, that necessary spare parts or appliances are generally available or are in stock at manufacturers.
(6)The services shall be performed from Monday to Friday at 08.00 -17.00 o’clock. Excluded are non-business days (service willingness time). If the service is performed at any other time, the contractor shall charge the additional fee according to the price list at the time valid. Additional services that are not agreed shall be performed after receipt of a separate order of the customer and the additional costs of such order shall be invoiced.
(7)Service performance times, that were promised by Com4voice (reaction times) are only valid in the scope of the arranged service-willingness-times. If a customer’s request is received outside the arranged service-willingness-times, this request is treated – with regard to promised service performance time- as if it has arrived at beginning of the following service-willingness-time. If the end of the performance time lies outside the service-willingness-time, the performance time is interrupted and continues with the beginning of the next performance time, if the parties didn’t agree anything else.
(8)If we can not provide owed performances within the arranged service performance time -despite all efforts-, we are entitled to realise within the agreed service time a comparable inter-solution after own discretion instead of the owed performances for a transition-phase. (for example that comparable substitute-appliance is available).
(9)If the customer requests additional service demands outside the agreed service performances or service time, we will implement as fast as possible meaningful measures after reception of the request, within a time limit to be agreed. Arranged service-times are not applicable to such extraordinary service-requests.

§ 7 Passing of risk in case of shipment

If the shipment is sent on request of the customer, the risk of accidental loss or accidental deterioration passes to the customer as soon as the delivery has left the warehouse for delivery/ the stock. This is independently valid from it whether the shipment of the ware of the fulfilment-place takes place or whoever carries the freight charges.

§ 8 Retention of title

(1)Delivered goods shall remain our property until all outstanding debts resulting from the business relationship between us and the customer have been paid in full. This is also applicable to all future deliveries, even if we don't refer expressly hereupon. We are entitled to take back the purchase-matter if the customer behaves contrary to the terms of the contract.
(2)The customer undertakes to treat the goods carefully. In particular, the customer shall be obliged to sufficiently insure the goods as their new value and at customer’s own expense against fire and water damage and theft. Insofar as maintenance and inspection work is necessary, the customer must carry out that work at his own expense and in time. In the event of a seizure of property or other interventions of third parties, the customer must immediately inform us in writing, so that we can take legal action pursuant to § 771 ZPO (Civil Code of procedure), Insofar as the third party is not in a condition to reimburse us the judicial and extra judicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the incurred loss.
(3)The customer shall be entitled to resell the goods in an orderly business procedure, however, the customer already now assigns to us all claims, amounting to the final invoice amount (including VAT) of our claim, which accrue for the customer from the resale vis-à-vis the purchaser or third parties. The assignment is independently valid from the fact, if the purchase is sold before or after processing. The customer stays authorized to incorporate the demand, even after the assignment. Our right to collect the claim ourselves shall remain unaffected. However, we undertake to refrain from collecting the claim as long as the customer meets the payment obligations from the collected revenues, is not in delay of payment or, in particular, have not filed an application to open composition or insolvency proceedings, or cessation of payments is given. Any and all processing and reorganisation of the goods by the customer shall always be considered to be carried out for us. In this case, the expectancy of the customer on the purchase continues on the transformed matter.
In the event that the goods are processed together with objects which are not owned by us, we acquire the co-ownership in the new object in relation of the value of the goods (final invoice amount, including VAT) to the other processed objects at the time of processing. The same shall apply in the case of mixture.
(4)In the event that the combining of the goods is carried out in such a way that the customer's object becomes the principal object, it is considered to be agreed that the customer assigns the proportional co ownership to us. The customer holds the resulting sole ownership or co-ownership in safe custody for us. The customer shall also assign to us the claims for securing our claims against the customer which accrue vis-à-vis a third party by connecting the goods with real property. We accept this assignment right now.
(5)We undertake to release the securities we are entitled to upon request of the customer insofar as the value which can be realised from our securities exceeds the claims to be secured by more than 20 %.

§ 9 Warranty and notice of defects

(1)Claims of the customer based on defects require that the customer has duly fulfilled his duty to examine and to make a complaint in respect of a defect immediately on receipt of the goods due to § 377 HGB [Commercial Code]. The customer shall without undue delay check that the consignment is complete, is consistent with the delivery documents and is in apparent good order and condition. The customer shall without undue delay give written notification of apparent deviations and defects, at the latest after 14 days. If no complaint is made within 14 business days from receipt at the customers address, the delivery shall be deemed to be in conformity with the contract.
(2)The regular limitation period for claims based on defects of the delivered goods is 12 months. If the delivered goods are second hand goods, the duration of guarantee is 6 months
The determinations in the sentence before are not valid, as far as the law rescribes longer terms due to § 438 Abs. 2 German Civil Code, § 479 Abs. 1 German Civil Code and § 634 a Abs. 1 German Civil Code. All return shipments have to be agreed in written with Com4voice.
(3)In the event that a defect is given we shall be entitled to choose a posterior fulfilment either in the form of a correction of faults or in the form of a delivery of a new faultless good.
(4)In the event that the posterior fulfilment fails, the customer is entitled, irrespective of possible claims for damage, to either choose to resign the contract or to request a reduction in purchase price. The customer can not request replacement for futile expenditures.
(5)Damage claims against Com4voice are excluded, by the insignificant deviation of the arranged state, by insignificant impairment of use, by natural wear or wear which produces damages, that inappropriate business-means, defective construction works, inappropriate construction-reasons after the danger-transition because of faulty or careless treatment, excessive demand, or on the basis of particular outer influences, that are not implied according to the contract, originates. If the customer carries non-appropriate maintenance work or modifications, he can not claim for damage.
(6)Claims of the customer are excluded, for the purpose of necessary after-fulfilment, especially transportation, - ways -, work and material-costs, as far as the expenditures increase, when the delivered goods, have to be moved supplementary to another place than the customer’s headquarter. Only if the transport corresponds with the determined use.
(7)Recourse-claims of the customer towards Com4voice only exist, when the customer didn’t agree with his buyers any claims of defects which are going beyond the necessary legal agreements. Paragraph 6 is applicable for the scope of the recourse claim for the customer against the supplier.
(8)Any further liability for damages than those provided in §9 shall be excluded – regardless of the legal nature of the asserted claim.
(9)In the case of malicious non-disclosure of a defect /fault or in case of the takeover of a guarantee for the condition and state of good at the time of the transfer of the risk due to § 444 German Civil Code, the rights for the customer are only directed by the law.

§ 10 Indemnification

(1)We shall only be liable in accordance with the legal regulations where the customers asserts damage claims based on intent or gross negligence, including intent or gross negligence by reprenstatives of Com4voice or if the achievement of the purpose in the contract is of essential meaning (cardinal obligations).
(2)Com4voice shall not be liable in the event of slight negligence of cardinal obligations our liability claim shall be limited to foreseeable damages typical of this type of contract and shall be limited to the maximum sum of the double invoice amount of the concerned good.
(3)The exclusion of liability or the limitation of liability is not valid as far as we are liable in the case of the injury of the life, the body or the health or for damages to things used privately according to the product liability law or for other reasons.

§ 11 Copyright licenses

(1)If software belongs to the delivery, we don’t transfer the customer the exclusive and irrevocable right to use the software. The customer is obliged to comply with the license and copyright conditions of manufacturers and suppliers.
(2)Plans, drawings and technical particulars, which we hand over to the customer, remain our property. The handing over of the documents mentioned does not create any rights of the customer in these documents, particularly no license. The customer may not use these documents, particularly he may not copy them, reproduce them or hand over, make them accessible to or disclose them to third parties without our written consent.
(3)If it is made use of because a customer breached the copyright conditions / and / or against industrial protection rights in the context of the delivered software, so the customer has to release us from the claims of the third parties.

§ 12 General

(1)These General Terms and conditions of Trade and the entire contractual relationship between us and the customer shall be subject to the law of the Federal Republic of Germany, excluding the UN-Convention on contracts on Contracts for the international Sale of Goods (CISG).
(2)Exclusive place of jurisdiction for all disputes resulting from the contractual relationship shall be the headquarter of Com4voice GmbH (Frankfurt am Main). As a consequence, only the German Version of our General Terms and Conditions of trade are valid.
(3)Amendments or modifications to a contract must always be confirmed in writing. Supplementary oral agreements were not arranged.
(4)Should other provisions agreed upon in connection with the cooperation of the customer is or become invalid, the validity of all remaining provisions or agreements shall remain unaffected. In this event the parties shall be obliged to construe or to amend the invalid clause, so that the economic purpose of the invalid clause will be best achieved in a legally valid manner.