Terms and Conditions of Presentec GmbH
1. Object of the company
Presentec GmbH (hereinafter: .Presentec., customer and Presentec jointly called .Parties.), based in Germany, 22676 Hamburg, Große Elbstraße 117, is a provider of mobile location technology in combination with mobile radio / sells hardware in Germany for the company Benefon and others. In addition, Presentec offers systems - especially telematics applications - and services in the fields of mobile telematics and data acquisition, logistics and security applications, location of people and objects, personal, mobile navigation and event transmission.
The following delivery, service and payment terms apply exclusively and for all contracts, deliveries and other services, including services and consultancy services, from Presentec to its customers (hereinafter: customer) . Deviating general terms and conditions of the customer do not apply unless expressly confirmed in writing by Presentec. Additional provisions in addition to these general terms and conditions of use may apply to some services ("Additional provisions"). Presentec's services may include additional provisions, rules of conduct or guidelines for certain features or offers. If these additions to the General Terms and Conditions of Use of Presentec contradict, these General Terms and Conditions of Use apply.
II. Content and scope of services
1. Conclusion of contract
Offers from Presentec are, as far as the delivery of the customer with the goods distributed by Presentec depends on a certain stock, always subject to change, unless expressly agreed otherwise. In the event that the goods are not available, Presentec will inform the customer immediately and reimburse the contractual partners for any consideration that has already been paid. The regulation in II.2.3 remains unaffected. All contracts must be in writing to be effective. Verbal collateral agreements are generally ineffective unless expressly confirmed in writing by both parties.
2. Service provision
2.1 Presentec provides all contractual services with the care usual in trade.
2.2 Presentec is entitled to involve third parties as part of the provision of services and repairs. The customer is only entitled to involve third parties if there are no essential interests on the part of Presentec that could endanger the purpose of the contract or if Presentec has expressly agreed to this in writing. The customer is also entitled to do so if Presentec has not declared within a reasonable period after notification of a defect whether Presentec is still performing the service or repair, if Presentec has finally refused the service / repair or the customer has exceptionally waited for the service / repair on the part of Presentec cannot be expected (danger imminent, emergency).
2.3 Customary deviations from the product description, which are mandatory due to legal regulations or represent improvements according to the latest state of science and technology, are permitted by Presentec, provided that they do not impair the usability for the contractually intended purpose and not of those guaranteed in the contract Characteristics of the product is deviated.
3. Delivery times, delay and non-delivery.
3.1 Partial deliveries to the customer are permitted to a reasonable extent, especially if this does not jeopardize the purpose of the contract and there can be no justified doubt about the provision of the entire service by Presentec within a reasonable or the contractually stipulated period.
3.2 In cases of force majeure and other events that cannot be foreseen for Presentec at the time the contract was concluded, such as operational disruptions of all kinds, transport delays, strikes, lawful lockouts, official measures, energy supply difficulties, unfavorable weather conditions and non-delivery, incorrect or late delivery through Presentec's suppliers, which Presentec is not responsible for and who make delivery of the service significantly more difficult or impossible, both parties are entitled to withdraw, provided that the obstacle to performance cannot be remedied within a reasonable period of time.
3.3 In the event of temporary obstacles, the delivery or service deadlines will be extended or the delivery or service dates will be postponed by the period of the hindrance after immediate notification in writing to the customer.
3.4 Presentec's delivery and performance deadlines / dates are automatically extended by the period in which the customer is in default with his contractual obligations. This also applies in the event that the customer is in arrears with obligations from other contracts with Presentec within an ongoing business relationship or a uniform living relationship within the meaning of § 273 BGB.
3.5 If Presentec has to pay compensation for non-delivery or late delivery, the amount of the compensation claim is limited to the damage foreseeable at the time the contract was concluded up to a maximum amount of 500 euros.
3.6 Presentec reserves the right to provide the contractually owed delivery / service only after the statutory cancellation or return periods in accordance with § 355 Paragraphs 1 and 2 and § 356 BGB.
4. Shipping and transfer of risk
4.1 Unless otherwise agreed in writing, the shipping route and means are left to the choice of Presentec. The goods are insured at the customer's request and expense.
4.2 If shipping is culpably delayed by the customer, Presentec stores the goods at the customer's cost and risk.
4.3 In the event of collection delivery, notification of readiness for dispatch and separation of the goods in the warehouse from Presentec is passed on to the customer, but otherwise at the latest when the ordered goods are handed over to a freight forwarder, carrier or otherwise to carry out the shipment Person or institution.
A suitable packaging for the dispatch of the goods in question will be invoiced separately by Presentec. Insofar as Presentec is obliged to take back packaging, the return will only take place in the warehouse of Presentec that takes delivery (take-back point). The customer bears the costs for the return to the take-back point.
6. Prices and payment
6.1 All prices are exclusive of VAT at the statutory rate.
6.2 Unless otherwise expressly agreed in writing and not precluded by a mandatory legal provision, all payments are due immediately. This applies regardless of whether a cash discount and / or cash discount target has been agreed.
6.3 Credit notes for bills of exchange and checks are made subject to receipt minus all expenses with the value date of the day on which Presentec can freely dispose of the equivalent.
6.4 The claims of Presentec, regardless of the duration of any accepted and credited bills of exchange, are due in full and immediately if the customer defaults on at least 10% of the outstanding claims or if Presentec becomes aware of circumstances after the contract has been concluded that seriously question the buyer's creditworthiness.
6.5 If Presentec becomes aware of circumstances after the conclusion of the contract that significantly jeopardize the customer's creditworthiness, Presentec is entitled to provide outstanding deliveries or services only against the customer's prior or security deposit.
6.6 A right of retention of payments due to or offsetting against counterclaims is only permitted to the extent that the counterclaims are undisputed or legally established.
6.7 Payments to employees and other representatives of Presentec are only effective against Presentec if the representatives have a corresponding authorization to collect. Presentec expressly advises its representatives of this duty to provide information to customers.
7. Data protection
7.1 Presentec collects, stores, processes and uses the customer's personal data only in the context of the intended purpose of the contractual relationship and in compliance with the relevant legal provisions. Any further processing and / or use of personal data is only permitted with the express consent of the customer and / or covered by a legal permission.
7.2 If Presentec hardware and / or software is used to process personal data, the customer guarantees that the hardware / software will only be used or have it used in accordance with the applicable data protection regulations, in particular the necessary consent from data processing Obtain or have the victim caught. Any other use of the hardware / software is prohibited.
7.3 If claims should be asserted against Presentec due to illegal use of the application by data protection law by the customer or his employees, agents, business partners or participants, the customer releases Presentec from such claims. The claim for exemption also includes the costs for administrative and other proceedings, unless these are caused by Presentec's own misconduct.
III. Securing services
1. Retention of title
1.1 Presentec retains ownership of all delivered items (hereinafter: reserved goods) until all claims against the customer from the business relationship - including future claims, also from contracts concluded at the same time or later - have been settled. This also applies if some or all of Presentec's claims have been included in a current account (current account) and the balance has been drawn and recognized.
1.2 In the event of seizure or other access by third parties to the goods subject to retention of title, the customer must immediately notify Presentec in writing. The customer bears all costs that must be used to prevent access and to retrieve the reserved goods.
1.3 The customer is authorized to use the reserved goods only in the ordinary course of its business, i.e. in particular not to sell on to third parties in the check-exchange procedure. Other dispositions such as transfer by way of security or pledges are not permitted, subject to the express consent of Presentec.
1.4 If the customer is in arrears with payments from the business relationship with Presentec or violates other essential contractual obligations or if Presentec becomes aware of the impending insolvency or over-indebtedness of the customer, Presentec can revoke the resale authorization.
1.5 In the event of resale of the goods subject to retention of title, the customer is obliged to reserve ownership of the goods sold to the customer until final payment, without which the customer is not authorized to resell the goods subject to retention of title.
1.6 The customer hereby assigns Presentec all future purchase price claims or other remuneration claims, including ancillary rights, to which he is entitled from a resale to his customers. This applies regardless of whether the reserved goods are resold without or after processing.
1.7 Until revoked, the customer is authorized to collect the claims assigned to Presentec. If the prerequisites according to para. III 1.4 for the exercise of the right of withdrawal, Presentec can demand that the customer notify the debtor of the assignment and that they must pay Presentec directly. In addition, Presentec is entitled to notify the debtor of the assignment after prior warning.
1.8 If goods subject to retention of title are processed by the customer within the meaning of § 950 BGB, the customer undertakes to inform Presentec immediately in writing of the processing and to return the processed goods as security until the purchase price has been paid in full. After full payment of the purchase price, Presentec is obliged to return the transferred goods to the customer.
1.9 If the goods subject to retention of title are processed or inseparably mixed with other items not owned by Presentec of the customer and if none of the items is to be regarded as the main item, Presentec shall acquire co-ownership of the new item. The co-ownership rights thus created are deemed to be reserved goods within the meaning of these conditions. Presentec undertakes to release the collateral to which it is entitled, insofar as its realizable value exceeds the claims to be secured, insofar as these have not yet been settled, by more than 20%.
2. Warranty for goods
2.1 In the event of defects in the delivered goods, Presentec has a right to supplementary performance (rectification or replacement delivery) before asserting any warranty rights. A rectification is deemed to have failed with simpler repair measures with the unsuccessful first attempt, with measures that require more complex technical effort, with the second unsuccessful attempt by Presentec. If the rework fails and a replacement delivery is not possible, the customer can choose between cancellation of the contract, compensation or reduction of the price.
2.2 In the event of supplementary performance, the customer must grant Presentec a reasonable grace period and provide the object or sample of the complaint. If the customer does not or does not sufficiently fulfill his cooperation obligations, the subsequent assertion of warranty claims is excluded. This does not apply in the case of a consumer goods purchase
2.3 In the event of failure, i.e. the impossibility, unreasonableness, refusal or unreasonable delay in subsequent performance, the customer is referred to the legal claims. The customer can then withdraw from the contract, claim compensation if necessary or claim a reduction in price. The warranty rights expire within 1 year from the transfer of risk, subject to a purchase of consumer goods.
2.4 The rejected goods must be sent to Presentec in their original or professional packaging. Presentec does not assume any liability for unauthorized, improperly carried out changes and repair work by the customer.
3. Warranty for software
1. Liability for data loss is limited to the typical recovery effort that would have occurred if backups were made regularly and in accordance with the risk.
2. The customer or partner is aware that according to the current state of the art it is not possible to deliver / produce map material that is correct or complete in every detail. In this respect, Presentec does not guarantee the correctness, completeness or the best possible course of the routes delivered for vehicle navigation. The parties also agree that under no circumstances can electronic navigation of vehicles even partially relieve the driver of his legal obligations in road traffic. This applies in particular to the question of whether certain routes can be traveled by a certain vehicle and can also be driven on the basis of the actual facts.
3. Defects in the delivered software or the data transmitted by offboard navigation will be remedied by Presentec within the warranty period of one year after acceptance after notification. At Presentec's option, this is done by remedying the defect free of charge or providing a replacement. If there are defects that do not unreasonably impair the use of the software or data, Presentec is permitted to remedy the defect as part of the next update. If the defect cannot be remedied within a reasonable period of time or if the rectification or replacement delivery is to be regarded as failed for other reasons, the partner can remedy the defect itself and demand reimbursement of the necessary expenses, reduce the remuneration (decrease), withdraw from the contract, claim damages. The right to advance payment for the self-repair of defects is expressly excluded. A failure of the rectification or replacement delivery can only be assumed if Presentec has been given sufficient opportunity for rectification or replacement delivery, if it is impossible, if it is refused by Presentec or delayed unreasonably, if there are reasonable doubts regarding the prospects of success or if an unreasonableness due to others Reasons.
Presentec is generally liable for intent and gross negligence as well as for the existence of guaranteed properties. Liability for damage based on normal negligence - i.e. if a duty is violated, compliance with which is of particular importance for the achievement of the contractual purpose (cardinal duty) -, except for personal injury and consumer goods purchases, is limited to a maximum of 50% of the foreseeable damage or max . 100,000 euros limited, in the case of usage fees to the amount of the fees incurred in the contract year. Irrespective of this, Presentec is not liable for damage that is not commensurate with the contract-typical risk of damage, for financial loss that is typically unpredictable and for financial loss (especially loss of profit) that is not a direct result of the loss event or the result of criminal acts . Presentec is only liable for the fault of vicarious agents to the extent of normal negligence. Presentec is liable for personal injury for which it is responsible up to a maximum of EUR 1,000,000.00, each limited in amount and scope by Presentec's liability insurance. Presentec GmbH, its managing director or its vicarious agents or third parties who perform the services for Presentec are not liable for performance disruptions due to strikes, riots, wars, acts of God and similar comparable events. Otherwise, Presentec's liability is excluded.
5. No liability for the services of third parties outside the contract
1. If Presentec provides data in its data center for electronic collection by the user, the data is transferred to the customer's output device at their responsibility and risk. Presentec assumes no liability for the fact that this data can be transmitted to the end customer at any time, provided that the customer uses third-party services (mobile network, Internet).
2. If GPS technology is used, Presentec assumes no liability for the fact that the satellites emit civil usable data at any time or for a certain period of time, that these data will continue to have the accuracy required for location in the future or that data reception will not be due to radio, atmospheric or other disturbances for which Presentec is not responsible can be affected.
If a cost estimate is requested prior to carrying out repairs that do not fall under the warranty right of rectification, this must be expressly stated. The cost of the estimate must also be paid if the repair is not commissioned. The customer bears the costs and the risk of accidental loss for shipping and packaging to Presentec. Repair bills are due immediately. Section II. 6. of these conditions applies accordingly.
IV. Use of software with cartographic components
1. Software concerned
Presentec sells software for determining geographic locations and their graphic display in text and image form. The cartographic components are not the property of Presentec.
2. Licensing these components
a. The customer is granted a non-exclusive, non-transferable and temporary right to use the software and the transmitted data. In addition, no rights are transferred to the customer, especially no property rights or similar rights.
b. The licensed components may only be used to the extent that this has been expressly agreed (maximum number of parallel users, servers, subscribers, whichever is relevant).
c. The license is only granted for personal use or internal use by the customer. A transfer to third parties, whether for a fee or free of charge, e.g. by way of timeshare. Lending, renting or leasing is prohibited.
d. The end customer may only use the software and data for the contractual purposes and only to the extent permitted in these conditions. The retranslation of the program code into other code forms (decompilation) as well as other types of reclassification of individual production stages of the software (reverse engineering) and the removal or circumvention of any copy protection that may be present is prohibited. The customer may not copy the data provided to him, unless sections 55a, 87e UrhG expressly stipulate otherwise.
e. The customer is prohibited from removing any existing copyright notices. The product may not be used to provide relevant information to third parties with a view to creating a competitor product or to produce one itself.
f. If, in exceptional cases, the case arises that software or data is brought outside the EU as part of its proper use, the relevant export regulations must be observed.
3. Contract terms, termination
1. Contracts come into force on the first of the month following the customer's signature of the contract and are initially concluded for the specified term, unless otherwise stated. It is extended by this term if the customer does not make a different declaration.
2. The parties are entitled to terminate the contract with a notice period of 1 month.
3. The right to extraordinary termination remains unaffected. Presentec has this in particular,
- if the partner repeatedly exceeds the payment terms granted by more than 10 days despite a reminder,
- if an application has been made to open insolvency proceedings against the customer's assets,
- if third parties enforce the rights resulting from this contract,
- if there are significant changes in the shareholder or ownership structure on the part of the partner,
- if Presentec becomes aware of an illegal use of the software.
4. Presentec is also entitled to an extraordinary right of termination in the event that a supplier - for whatever reason - stops supplying data that due to a significant change in the supplier's terms and conditions, the local contract can no longer be carried out economically at the agreed conditions or that the supplier sees the use of the data as inadmissible in the manner that is the subject of the contract and that, according to klickTel's legally sound assessment, this view appears reasonable.
5. Any termination must be in writing.
6. In the event of termination of the contract, the customer must return all records, access data, backup copies and other data carriers or ensure that they are unrecognizable or destroyed.
V. General provisions
1. The place of performance and exclusive place of jurisdiction for deliveries and payments as well as for all disputes between the parties (including check and bill of exchange actions) is Hamburg, as far as legally permissible.
2. It is only the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 does not apply.
3. All ancillary agreements to contractual agreements must be in writing to be effective. This also applies to changes or repeals of individual provisions of this contract.
4. If individual provisions of these terms and conditions are or become wholly or partially ineffective, the effectiveness of the remaining part or the remaining provisions is not affected. Instead of the ineffective provision or the ineffective part of the provision, the legally effective regulation that comes closest to the purpose pursued by the parties with the ineffective provision applies.
VI. Return policy and consequences
1. Right of return
You can send your contract in writing within two weeks without giving reasons (e.g. letter, fax, email to info (a) presentec.de [/ wpml_mailto] or by returning the goods, unless you have acted in your commercial or independent professional activity (orders from entrepreneurs). The period begins after receipt of this instruction in text form, however not before the goods have been received by the recipient and not before Fulfillment of our information obligations in accordance with Article 246 § 2 in connection with § 1 Paragraph 1 and 2 EGBGB as well as our obligations in accordance with § 312e Paragraph 1 Sentence 1 BGB in conjunction with Article 246 § 3 EGBGB or the goods, the revocation must be sent to: Presentec GmbH, Große Elbstr. 117, 22767 Hamburg or info (a) presentec.de [/ wpml_mailto]
In any case, the return is at the expense and risk of Presentec GmbH. The return or the return request must be made via contact via Presentec GmbH.
The 40 euro clause described in the cancellation policy (right of withdrawal) refers to the regular costs of the return. A possibly deviating regulation remains excluded from this.
The right of return does not exist according to § 312 d Abs. 4 BGB for contracts
- for the delivery of goods that are made to customer specifications or are clearly tailored to personal needs or that are not suitable for a return due to their nature or can spoil quickly or whose expiry date would be exceeded,
- for the delivery of audio or video recordings or software, provided that the delivered data carriers have been unsealed by the consumer,
- for the delivery of newspapers, magazines and magazines or
- for the provision of betting and lottery services or which are closed in the form of auctions.
3. Return sequences
In the event of an effective return, the services received on both sides must be returned and any benefits (e.g. benefits of use) that have been drawn must be surrendered. In case of deterioration of the goods, compensation can be demanded. This does not apply if the deterioration of the goods is solely due to their inspection, as the consumer would have been able to do in a shop, for example. In addition, the consumer can avoid the obligation to pay compensation by not using the goods like an owner and by refraining from anything that could impair their value.
HRB 81418, Hamburg
Managing Director: Heiko Thölmann
No. DE02 / 834/05222
Hamburg, November 4th, 2011