General terms and conditions (GTC) of the ixellence GmbH
Please note: The English version at hand may be seen as a service for our customers and not as the legal version. Only the German version is legally binding and will eventually apply.
§ 1 Scope of application
The general terms and conditions (GTC) of ixellence GmbH, in the following called ixellence, apply for all contracts between ixellence and their clients in the version that was valid at the time of the order and for the delivery of software due to the respectively applicable end-user license agreement (EULA) of ixellence if there has not been made any other explicit agreement in written form or if there has not been regulated anything different mandatorily by law.
§ 2 Offer
1. The goods offered in the online shop of ixellence are probably represented in the form of illustrations on the website. Differences between the illustration and the real state do not indicate any flaws of the ordered goods.
2. The products presented in the online shop of ixellence may not be available in the moment of the client visiting the website or the indicated prices may have changed. Hence they may not be understood as binding quotation. The prices are given in the currency EUR and exclude the VAT as well as the shipping costs.
3. The written quotations of ixellence are non-binding regarding prices, dates of delivery or further details as long as an according declaration has not been made in written. The documents belonging to the quotation are, provided the participants have not come to any other agreement, non-binding descriptions of service and do not constitute a basis for warranted properties. The same applies for statements in brochures or announcements.
§ 3 Contract closing
1. By clicking the button “Buy”, the client places a binding order of the goods the shopping cart contained at that time. An automated e-mail from ixellence normally confirms the receipt of the order which may not be seen as acceptance of the contract. The contract is concluded by the order confirmation and/or the invoice and/or the delivery.
2. If the order is placed offline, the order has to be placed either on the letterhead of the client (e.g. as so called “purchase order”) with reference to the quotation or on the corresponding quotation of ixellence that has been signed by the customer. The contract is concluded by the order confirmation and/or the invoice and/or the delivery.
§ 4 Prices
1. The stated prices apply plus costs for packing and shipment plus VAT.
2. In the case that the order cannot be realized without exceeding the quotation by more than 20%, ixellence must indicate that to the client.
3. Regarding tax-free deliveries, the client must state their Value Added Tax Identification Number (VAT no.) in their order for the purpose of intra-community tax-free delivery according to . That requires that the goods effectively arrive in other EU countries and that the recipient is an entrepreneur. Without declaring the correct VAT no., the invoice will be issued including the value added tax.
4. Regarding deliveries to states which do not belong to the EU, the tax exemption for exports applies according to
§ 5 Payment
1. The payment must be made without deduction within the period as stated in the invoice. If such a period has not been indicated in the invoice, the payment must be made without deduction within 14 days as of the receipt of the invoice. In the case of partial shipment, the billing amount must be paid without deduction within 14 days after the receipt of the invoice.
2. The delivered goods remain the property of ixellence until completely paid.
3. The payment of the amount invoiced can be effected either in the form of prepayment by transferring the corresponding amount to the banking account as indicated in the invoice, via PayPal or by the credit card providers VISA or MasterCard.
4. If the client acts in breach of contract, especially regarding default of payment with a claim from the business ties as well as regarding the case that the client stops payment or that legal insolvency proceedings have been initiated against the client, any payment agreement becomes invalid and ixellence can demand the immediate return of their property regardless of their other rights. The recall of the goods subject to retention of title by ixellence does not mean the withdrawal from the contract, unless ixellence explicitly declares this in written form. Further ixellence is authorized to claim any pending billing amounts and to claim any prepayments and/or bails.
§ 6 Delivery, dispatch and costs
1. The written order of confirmation and/or the invoice is authoritative for the extent of the delivery or any other service.
2. When ordering, the customer must indicate differing delivery addresses. If no other address is given, the goods will automatically be shipped to the customer. ixellence reserves the right to carry out partial shipments. If those delivered goods can already be of reasonable use for the customer, ixellence will be authorized to invoice those partial shipments.
3. ixellence does not accept procurement risk and is entitled to cancel the contract if it cannot supply the delivery item. ixellence will immediately inform the customer about the delayed availability of the delivery item and, in the case of a withdrawal, will promptly make use of the right to withdraw. In the case of withdrawal, ixellence will instantly refund already made payments to the customer.
4. Exceeding the concerted delivery date only eventuates in default provided the client has sent ixellence a dun and specified therein a deadline which is adequate for the extent of the undertaken services and does not come below one month. After the unsuccessful expiration of the deadline the client is authorized to cancel the contract by a written declaration. Exceeding the concerted delivery date does not eventuate in default if ixellence carries out altering or complementing work on the products as requested by the client.
5. The service may be accepted after completion, even though the final adaption to the specific requirements of the client has not been completed yet. Self-contained parts of the service can be accepted separately on request. If the service has been used partially or completely, it is considered accepted. If the approval is delayed through no fault of ixellence, the approval is considered effected after the expiration of the time limit of 6 workdays. Using the service before the final approval may only take place with the explicit consent on the part of ixellence. Partial services are considered effected upon their employment.
ixellence takes on the risk until the approval of the delivery or the service. The client takes on the risk already before the approval of the service in the case that the approval is delayed by reasons that are not to be advocated by ixellence.
6. ixellence is not responsible for delays in delivery and service due to force majeure and events that complicate the delivery significantly or make it even impossible, such as war, natural catastrophes, regulations by law, strikes, etc. – that also applies to deliveries to ixellence by suppliers –, even though there might be binding agreements on deadlines and terms. Furthermore, ixellence is entitled to adjourn the delivery for the duration of the disruption with a reasonable starting time in addition to that and to rescind the contract partially or completely. In any case, ixellence raises the claim to the payment of already performed work and other accrued costs.
If the impediment to performance in the previously enumerated cases has existed for more than four weeks, the customer is entitled to withdraw from the contract. The customer is not eligible to further claims, especially not to indemnity.
7. The choice of the forwarder depends on the destination country of the shipment. The decision bases on internal criteria and cannot be influenced by the customer. The delivery might be delayed due to customs clearings in the destination country.
8. The customer bears the shipment charges in addition to the purchase costs. Costs possibly incurred by duties and/or taxes also have to be paid by the customer.
9. Insofar as the scope of supply includes software, descriptions of software or other copyrighted works and the work shall be ceded to the client for use, a non-exclusive right of use will be conceded to the client - as the case may be: for a limited period of time – according to the ixellence end-user licence agreement (EULA) for the respective work.
The EULA can be found on the ixellence’ website, on the storage medium and/or are enclosed to the product.
10. Using the products, the customer commits themselves to be mindful of the EULA and especially of the therein contained restrictive covenants. In the event of an infringement, the customer is liable for the full costs of thereby caused damage.
§ 7 Cancellation policy
CANCELLATION RIGHT FOR CONSUMERS
1. Provided that the customer is also a consumer, they can cancel the contractual declaration without giving any further reasons within 14 days. That must be effected in written form, e.g. via letter, fax, e-mail, or – if the item had been ceded to the customer prior to the deadline expiration – through the return of the item in question. The period of time starts after the receipt of this policy in written form but not prior to the arrival of the goods at the recipient, provided repeated shipments of same natured goods, not prior to the first partial delivery, and also not prior to performing our information obligation according to article 246 §2 in conjunction with §1 paragraph 1 and 2 Introductory Act to the German Civil Code as well as our duties according to §312g paragraph 1 sentence 1 German Civil Code together with the article 246 § 3 Introductory Act to the German Civil Code. The timely forwarding of the cancellation or the product is sufficient in order to maintain the cancellation period.
3. In the case of an effective recall, the efforts of both sides must be given back and as the case may be, derived benefits (e.g. interests) returned. If the received service as well as further advantages, e.g. benefits from use, cannot be given back completely or only partially or just in a worse state, the customer must provide compensation of the respective extent to ixellence. The customer is only held liable for compensation for the deterioration of the item and for drawn profits, insofar as the benefits and the deterioration can be attributed to the use of the item that is beyond the scope of assuring oneself of the properties and functionality.“ Assuring oneself of the properties and the functionality” refers to the testing and trying out of the respective good like it is possible and usual in a retail shop. Items consignable by parcel post can be returned to ixellence on one’s own risk. The customer must pay the regular fee for the return provided that the delivered goods conform with the order and the price of the item to be returned does not exceed the value of 40 EUR or in the case of a higher value of the item, if the customer has not made the consideration or a contractually agreed partial payment in the moment of the cancellation. Otherwise the return is free of charge for the customer.
Items not consignable by parcel post will be collected from the customer, a shipping label will be sent to the customer for items consignable by parcel post. Not-prepaid shipments will not be accepted by ixellence. Obligations to the recompense of payments must be fulfilled within 30 days. In terms of the customer, the period begins with the forwarding of the cancellation declaration or the return of the item, in terms of ixellence with its receipt.
Exceptions from the cancellation right
4. According to § 312 par. 4 German Civil Code, the cancellation right does not apply to contracts which define the delivery of goods that have been produced complying to customer specification, customized clearly to personal needs or that are not suitable for return because of their nature. Furthermore, the cancellation right does not apply to the delivery of software, insofar as it has been activated by the consumer.
5. If the customer is an entrepreneur in the sense of § 14 German Civil Code and they act in their commercial or self-employed function when concluding the contract, the cancellation right does not apply.
END OF THE CANCELLATION POLICY
§ 8 Reservation of ownership, offsetting, right of retention
1. Regarding consumers, ixellence reserves the ownership of the purchase item until completely payed. If the customer is an entrepreneur in their commercial or self-employed function, a corporate body under public law or public separate estate, ixellence reserves the ownership of the purchased item until all outstanding debts deriving from the business connection with the purchaser have been compensated. The according security interests can be assigned to a third party.
If ixellence claims the reservation of proprietary rights, the client loses the right for the further use of the service or the shipment. All the copies created by the client have to be deleted.
2. The right for offsetting is only due to the customer if counterclaims are legally ascertained, or uncontended or acknowledged by ixellence. The customer only has the right of retention if and insofar as the counterclaim bases on the same contractual relationship.
3. If the customer defaults on any payment obligations towards ixellence, all existing demands become due immediately.
§9 Guarantee, notice of defects, liability
1. ixellence draws attention to the fact that, according to the state of the art, it is not possible to design computer software such that it performs flawlessly in every application or combination. Thus the subject of the contract is a software which is insofar principally useful as its use conforms to the program description and to the user manual.
2. ixellence is not liable for any damages for whatever legal reason, unless the damage has been caused with intent or gross negligence on the part of ixellence. Towards traders the responsibility for gross negligence is further excluded.
Liability due to properties that have possibly been warranted by ixellence remains unaffected. Liability for damage caused by a defective product that are not encompassed by the warrant is excluded. ixellence is only liable for damage caused by a defective product due to missing warranted properties if the warranty had the purpose of protecting the client from exactly such damages.
In the case of breaching an essential contractual commitment, ixellence is only responsible for the typical and predictable damage.
3. In the case of data loss, the liability only extends to the typical effort for recovery provided the existence of according backup copies.
4. The warranties for deliveries and services towards traders expire, unless agreed otherwise, 6 months after the successful installation provided that ixellence performed it, otherwise as of the delivery.
5. Compensation claims due to legal defects, e.g. missing copyrights or other third-party rights, are excluded insofar as ixellence has not known of this legal defect. Claims for damages due to a legal defect are excluded.
The warranty for initial inability to perform is limited to double the amount of the fee of cession and on such damages whose emergence shall be taken into account when software is provided.
6. ixellence is liable for defects towards traders as follows: The client has to examine the delivery or the service including the documentation within 8 days as from the delivery, especially with regard to the completeness and integrity of the data carrier, the program description and other supplementary material, the operability of essential program functions as well as to the warranted properties. Faults that can be determined while doing so have to be reported to ixellence within further 8 workdays. The notice of defects must include an exhaustively detailed description of the flaws. If faults are determined that have not been detected during the first examination, performed as described previously, one must notify of defects within 8 days after their discovery in accordance to the given requirements for such a notification. In case of breaching the examination and notification duties, the delivery or service counts asis considered accepted, acknowledging the defect, consequently the seller’s warranty does not apply. Provided a justified notice of defect has been reported in due time, ixellence is entitled to amending the faulty delivery or, as the case may be, service, or performing substitute deliveries according to their choice. For fixing the defects, the client must allow ixellence the reasonably required time. Reducing the payment or annulling the contract can be claimed only if the amendment or the compensation deliveries have failed.
7. However, the warranty does not apply if the client does not provide an adequate opportunity for amendments. Insofar as the delivery shall be returned to the deliverer for the purpose of amendment, the client carries the shipping costs necessary to that end.
8. For hardware or software, that was not created by ixellence, ixellence forwards the warranty claims granted by the deliverer or manufacturer (= third parties). The claiming of ixellence is considered only secondarily, provided that the foreclosure has been initiated against the deliverer or manufacturer unsuccessfully (benefit of discussion).
§10 Changes in the general terms and conditions
1. ixellence is entitled to change the general terms and conditions, insofar as those have been introduced into the contractual relationship with the customer, if that is necessary in order to eliminate subsequently emerging shifts in the balance between ixellence and the client (Äquivalenzstörungen) or in order to adapt to altered legal or technical conditions. By giving details on the changes in the according paragraphs, the customer will be informed about an adaption of the general terms and conditions. The alteration will become part of the contract if the customer does not object the inclusion in the contractual relationship within six weeks after receiving the information on the respective alteration.
§11 Choice of law, effectuality, jurisdiction
1. The German right applies according to the German Civil Code (BGB) and German Commercial Code (HGB) excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
2. In the case that particular clauses of the contract including these regulations are or become invalid or that the contract shows an unforeseeable gap, the effectuality of the remaining regulations or parts of such regulations remain unaffected and still apply. Those must be interpreted or completed in a way that enables the achievement of the intended commercial objective as precisely as possible. That also applies for possible gaps that require to be completed. The corresponding legal regulations substitute invalid or missing regulations.
3. If the conditions for the jurisdiction clause according to the §38 civil process order are given, Berlin will be declared as jurisdiction.
4. In the case of the sale or another form of transfer of ixellence software, the regulations of the according ixellence End User Licence Agreement (EULA) apply additionally. These also become part of the contract. In case of doubt and/or in case of contradictory regulations, the clauses of these general terms and conditions take priority over the regulations in the EULA.
5. For their validity, deviations from the foregoing general terms and conditions require the written confirmation by ixellence in any case.