General Terms And Conditions
The text has been automatically translated and is therefore not legally binding. You can find the original version in the German language here: https://iosxpert.biz/agbs/
1. Application Area, General
1.1 The General Terms and Conditions (“GTC”) of iOSXpert Business on Mac & iPhone GmbH apply to the sale of the software and, if applicable, hardware components mentioned in the respective order. The GTC is also valid for future orders of the customer of software from iOSXpert (sales contracts), without iOSXpert having to refer to these GTC again.
1.2 Deviating or supplementary terms and conditions of the customer do not apply.
Our offers are freely revocable and serve only as a request for the submission of purchase offers by the customer. We expressly reserve the right to make changes to programming, equipment, or models, as long as these changes are not of a fundamental nature, the contractual purpose is only insignificantly limited and the interests of the buyer are not unreasonably impaired.
iOSXpert is bound to its offers for 14 days.
3. Terms of Payment
3.1 The customer has no right of set-off and no right of retention unless the respective claim if the customer has either been legally determined or iOSXpert has acknowledged it.
3.2 As a rule, payment is due immediately. The delivery of the license and services will take place after receipt of payment. In case of written special regulations and in case of default of the customer with payments in not insignificant amounts, iOSXpert is entitled to suspend its delivery of products and services from the same legal relationship until the customer has transferred all due payment amounts to iOSXpert. Other legal rights of iOSXpert remain unaffected. In the event of insolvency for which the customer is responsible, this applies accordingly.
Retention of payments by the buyer due to counterclaims from other contractual relationships is excluded. If the buyer is in default of payment, we are entitled to charge default interest at a rate of 9% above the respective prime rate of the European Central Bank. The interest is due immediately. In case of reminders, the postage will be charged individually. For merchants, a lump sum of 10.00 Euro net will be charged additionally per written reminder. Furthermore, we are entitled to charge a flat rate of 10.00 Euro for the processing of unpaid direct debits, unless we can prove greater damage or the buyer can prove lesser damage. In the event of a delay in payment of more than two months, we are entitled but not obliged to stop any services by us and/or to terminate the contract with the customer.
If the Daylite Cloud is brokered to the customer, we would like to point out as a precaution that the service provider and invoicing party is the manufacturer Marketcircle (https://www.marketcircle.com/de) based in Canada.
4. Conditions of Provision/Delivery
4.1 Dates and periods related to the provision/delivery are only effective if iOSXpert has explicitly confirmed them in writing.
4.2 Newly purchased software will initially run for at least 14 days from the date of provision for download. The customer will receive an unlimited activation immediately after receipt of payment. In the case of payment by installments, the customer will receive a limited activation period on a continuous basis according to the receipt of payment.
4.3 As far as iOSXpert purchases products or services from third parties, iOSXpert chooses its suppliers carefully. If it should nevertheless not be possible for iOSXpert, through no fault of its own, to deliver the software to the customer due to its own non-delivery, both contractual partners are entitled to withdraw from the affected sales contract. If such a case occurs, iOSXpert will inform the customer immediately and refund the consideration.
5. The Customer’s Obligation to Cooperate
5.1 The customer is obliged to download the software immediately after it is made available for download.
5.2 The customer will examine the software immediately after receipt for completeness and obvious defects and will submit corresponding complaints in writing to iOSXpert. Hidden defects shall be notified in writing immediately after their discovery. In case of violation of this duty of examination and notification, the software shall be considered as approved.
5.3 In order to avoid damage, the necessity of a continuous data backup in accordance with the recognized rules of technology is pointed out.
5.4 If the software is provided to the customer together with a configuration plug (e.g. TOPIX software), the customer shall keep this carefully and in particular prevent access and misuse by third parties.
5.5 If the configuration connector must be replaced or repaired for a reason for which the customer is responsible, the customer shall send it to TOPIX at his own expense and risk.
6. Warranty / Rights of the Customer in Case of Defects
6.1 The rights of the customer shall be governed by the statutory provisions unless otherwise provided in these GTC or other agreements with the customer.
6.2 iOSXpert warrants that the products are free of errors according to the product descriptions the customer received before the order was placed.
6.3 The warranty period is one year from receipt of the respective software (i.e. provision for download as well as notification of an activation number). Excluded are claims for damages, to which clause 7 applies.
6.4 The warranty of iOSXpert is initially based on subsequent performance, i.e. rectification of defects or replacement delivery, at its option.
6.5 No warranty is given if the customer’s system environment differs from that described at www.topix.de/systemanforderungen or https://www.marketcircle.com/help/article/daylite-6-system-requirements/ and the claimed defect would not have occurred without this difference.
6.6 iOSXpert clarifies that there is no warranty for errors of the software, which the customer causes by use in an unsuitable system environment (see section 6.5), operating errors, unauthorized changes, or adjustments of the software, and/or use contrary to the contract.
6.7 Buyer’s Rights in Case of Defects
The warranty period is one year for entrepreneurs and two years for consumers from the date of delivery of the goods. Guarantees in the legal sense are not assumed by us. In the case of contracts with consumers, the statutory provisions apply in the event of defects, with the proviso that the buyer’s claim for damages due to a defect is excluded. In the case of used goods, the period of limitation for consumer rights in the case of defects is one year; in the case of merchants, the warranty is excluded, unless otherwise agreed. Possibly existing manufacturer’s warranties will be passed on to the customer, however, execution of this manufacturer’s warranty may be subject to costs (shipping, packaging, etc.). No warranty claims against us can be derived from the execution of a manufacturer’s warranty. Obvious defects must be reported to us in writing within one week. If the buyer is a merchant, the shipment must be checked immediately upon arrival for functionality and completeness and we must be notified immediately in writing. The defective goods must be kept ready for inspection. The regulations of §§ 377, 378 HGB remain applicable. In case of defects, the customer must read the operating instructions and information on the goods before we call in the goods and independently search for solutions. Before returning the goods, this must be discussed with us. If the customer is a merchant, the return shipment must be free of charge. In case of an unjustified return, we are entitled to charge a handling fee of 25 Euro (net) for merchants. The buyer is entitled to prove that lower damage was caused. In the event of a defective delivery within the agreed or statutory period of limitation, we will deliver a replacement or repair the goods. At least two subsequent improvements are reasonable. Guarantees are only given if the description of the goods has been designated in writing as a guarantee. If the repair or replacement fails after a reasonable period of time, the buyer is entitled to demand a reduction of the purchase price or cancellation of the contract for the defective goods in accordance with the legal requirements. During a rectification or replacement delivery, the statute of limitations is suspended. The exchange of equipment parts is only carried out to eliminate defects. For these new device parts no longer warranty is granted than it corresponds to the delivered goods. For unforeseeable damages, especially due to the occurrence of computer viruses, there is no liability, unless we have acted with intent or gross negligence or damages to persons occur. In case of non-observance of operating and/or maintenance instructions or changes made to the goods (also e.g. to the source code) or parts changed that do not correspond to the original parts of the manufacturer, a warranty is forfeited if a defect has arisen as a result.
7.1 In case of breach of duty iOSXpert is liable according to the legal regulations, as far as not otherwise stipulated in these GTC or other agreements with the customer.
7.2 Towards the customer, iOSXpert is only responsible for malice, intent, and gross negligence. In addition, iOSXpert is also responsible for simple negligence – for damages resulting from injury to life, body or health, – for the violation of an essential contractual obligation; in this case, however, the liability of iOSXpert is limited to the compensation of the foreseeable, typically occurring damage. Claims of the customer from guarantees taken over by iOSXpert as well as the product liability law remain unaffected.
7.3 The customer’s claims for damages against iOSXpert are subject to a limitation period of one year after the claim has arisen unless legal regulations provide for shorter periods. In the cases mentioned in section 7.2, however, the legal periods of limitation apply.
7.4 iOSXpert is not liable for the loss of data caused by slight negligence.
8. Repair Orders, Data Backup, Data Recovery, Unsuccessful Troubleshooting
For repairs and configurations, we do not assume any liability for data and functionality. The customer must ensure that a complete and functional external data backup is available before placing a repair order with us. Data recovery is only carried out within the scope of a service contract, as it is not foreseeable whether data can be recovered. The customer can inform us about a maximum sum of costs up to which we should carry out data recovery. The customer will be invoiced for the expenses incurred, including spare parts, even if the data recovery was not successful. If we come into possession of access data or passwords, we can only be held liable for misuse in case of gross negligence.
9. Rights to the Software of iOSXpert
9.1 With the delivery and full payment of the software, the customer acquires a simple, permanent right to use the software on a single computer (single-user license) or in a single network (multi-user license). In the case of a single-user license, simultaneous multiple uses of the software is generally not permitted. In the case of a multi-user license, the scope of a permitted simultaneous multiple uses of the software is based on the number of users for which authorization was acquired. If the customer changes the hardware, the customer must delete the software from the hardware used up to that point.
9.2 The customer is only permitted to copy the Software in whole or in part on data carriers to the extent that this is necessary for data backup. Each backup copy must bear all notices contained in the copy of the software sent to the customer that refers to copyright, other industrial property rights, or confidentiality.
9.3 The customer may not transfer or sublicense the software, the right to use it and, if applicable, backup copies to third parties.
10. Distance Selling
If a contract with the customer is subject to the provisions of §§ 312 b – 312 f BGB, the contract can be revoked in writing within one month according to the legal regulations. Contracts concluded in an entrepreneurial capacity, where, for example, the invoice recipient is a merchant, self-employed person or freelancer, can only be revoked in accordance with the agreements made.
11. Server Availability
For all server services (email service, web hosting, database hosting, housing, etc.) an annual average availability of 95% is guaranteed. In the event of a shortfall, the customer is entitled to reduce invoice amounts according to the non-availability. Claims for damages arising from impossibility of performance, positive violation of claims, culpa in contrahendo, and tort are excluded both against us and in relation to our vicarious agents and assistants unless intentional or grossly negligent conduct is present. Claims for damages due to the failure of an internet server cannot be asserted, since due to various factors beyond our control no guarantee can be given for a 100% availability of the servers. We can limit or suspend access to certain services if the security of the network operation, in particular the avoidance of serious disturbances of the network, the software used or stored data, requires it. This includes, for example, spam attacks or so-called DOS (Denial of Service) attacks. We reserve the right to improve our deliveries and services in line with technical progress. We cannot guarantee the functionality of programs installed at the customer’s site unless this has been agreed with us in writing.
12. Imprint on Websites
Every customer who maintains a website on our servers is obliged to provide a complete imprint with name, address, and telephone number. The customer is solely responsible for a legally correct design of the imprint.
Maintenance is unavoidable in the IT sector. If possible, these will be communicated to the main user info@(customer domain name) by email in advance. The customer must take precautions to ensure that no negative circumstances arise for the customer during the maintenance period (use of an alternative email account with another host, etc.).
14. Log Files
Through our servers log files are created during access to websites, databases, email retrieval, email dispatch, FTP transmissions, etc.) The customer has no direct right to access these access log files because data of other users could be included in them (data protection). For the evaluation of the accesses to the websites, log files and corresponding evaluations are created, on the basis of which our billing is also created. Personal log files (email retrieval, etc.) are usually deleted for data protection reasons in accordance with the legal regulations.
15. Stored Data, Data Backup, Break-In Attempts on our Servers
The customer himself has to take care that an up-to-date backup of his locally available (on his workstation computer) data of these data is available. We create four backups per month of the customer databases hosted by us, and if we keep a backup of your data, we can make this data available to you in case of loss. The customer has no right to a data backup unless this has been contractually agreed upon separately. The transfer of your data from a data backup will be charged according to time and effort. Servers cannot provide 100% security against defects or break-ins from external or internal sources. Therefore, no liability or compensation can be accepted in case of data loss, modification, or theft. The user has to keep passwords given to him/her confidential and is obliged to inform us of any suspicion of misuse by unauthorized persons. The customer has to retrieve incoming e-mails via the Internet at his own expense and at reasonable intervals and store them on his own computers. If through the fault of the customer, third parties use our services by using the passwords, the customer is liable to us for usage fees and damages. Data protection and data security for data transmissions cannot be guaranteed on the Internet according to the current state of technology. The page offers stored on web servers and possibly also other customer data stored on our servers can be viewed at any time from a technical point of view. Other participants on the Internet may also have the technical possibility to intervene in the network security without authorization and to control the message traffic or to view data. The customer himself is fully responsible for the security and protection of the data transmitted by him to the Internet and stored on web servers, even if directories or data have been protected or encrypted by us. Content with pornographic, trademark, or competition law problems, content that impairs the rights of third parties, and content that is illegal in Germany may not be stored on our servers, not even under the customer’s domain name. Only the customer is responsible for the content of the offers distributed via his domain. Should we become aware of any violations, we reserve the right to immediately block the respective offer without further consultation with the customer or to return the domain to the registrar. In case of cancellation of server services by us or the customer, all data stored on our servers will be deleted after a reasonable period of time. The customer himself has to take care that all data is backed up before the deletion by us.
16. Contract Periods
If a contract is concluded for an indefinite period of time, the contractual relationship can be terminated by both parties with 30 days to the end of the month. If a minimum contract period has been agreed, the contractual relationship can be terminated with 30 days to the end of the minimum contract period. If the contract is not terminated in due time, it will be extended by the minimum contract period. For VIP Support Packages, the termination modalities according to the signed order confirmation apply. For PluginCenter subscriptions, the following applies: You can cancel your subscription at any time in due time. There will be no refund of subscription fees already paid. If you have canceled your subscription, you can make use of it until the end of the subscription period.
17. Contractual Penalty
17.1 If the Customer commits a copyright infringement for which he is responsible when using the software (e.g. through overuse), he shall pay a contractual penalty in the amount of the purchase price for the software concerned. The contractual penalty is due in each individual case of a breach of duty. iOSXpert is entitled to demand omission and compensation for damages. The forfeited contractual penalty will be credited against the possible compensation for damages.
18. Retention of Title, Customer Data
18.1 Until complete payment, the ownership of delivered hardware and software remains with iOSXpert. In case of a sale to resellers this also applies in case of resale.
18.2 The customer can view his data processed by the software at any time with the help of the test version, even without activating the software.
18.3 Basically iOSXpert charges services and licenses by advance payment. Consulting, support, and development services are charged with consulting, support, and development contingent/credit purchased by the customer. This credit can be called up at iOSXpert within 12 months after purchase. Beyond that, there is no claim for reimbursement.
19. Data Protection, Address Data
The customer assures that the information provided by him within the scope of the contract about his person and/or company and other contract-relevant data is complete and correct. The customer must inform us immediately of any changes to contract-relevant information. This includes address and telephone numbers as well as company related data (insolvency, change of company form, etc.). In the event of a violation, we are entitled to immediately block or withhold the contractual services or to terminate the contract. Personal data of the customer will be collected, processed, and used by us during the contractual relationship only for the purpose of contract implementation, including billing. The data collection, use, and processing are carried out electronically. We will not pass on the customer’s address data or the content of private messages of the customer to unauthorized third parties without the customer’s consent (exceptions see domain registration at registrars). In case of a transfer of the company iOSXpert Business to Mac & iPhone GmbH to another company or corporation according to the Transformation Act, the contracts can be transferred to the new company by a contract transfer. In case of application of the Telecommunications Customer Protection Ordinance (TKV) the liability according to § 7 para. 2 TKV remains unaffected.
20. Deadline Setting
20.1 If the customer has the right to withdraw from the contract with iOSXpert and/or to claim damages instead of performance or reimbursement of expenses, after a reasonable time limit set by the customer has expired unsuccessfully, such a time limit must additionally contain an explicit threat of the customer that he will assert these rights after the expiration of the time limit.
21.1 Changes and amendments of the customer’s contract with iOSXpert must be in written form. The same applies to a waiver of this written form requirement. Electronic documents without a qualified electronic signature in the sense of the German Signature Act do not comply with the formal requirement.
21.2 Should any of the above provisions be invalid, the validity of the remaining provisions shall not be affected. The parties shall replace an invalid provision by another provision which comes as close as possible to the economic purpose of the invalid provision and which is itself valid.
21.3 The exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship with the customer is the local court of Koblenz. The contractual relations are subject to the law of the Federal Republic of Germany under exclusion of the Vienna UN Convention on Contracts for the International Sale of Goods.
The text has been automatically translated and is therefore not legally binding. You can find the original version in the German language here: https://iosxpert.biz/agbs/