General business terms and conditions and customer information

I. General business terms and conditions

§ 1 Basic provisions

• The following business terms and conditions apply to all contracts that you conclude with us as a supplier (vykon GmbH & Co. KG) via the website www.vysoft.eu or about acceptance of an offer. Unless otherwise agreed, the inclusion of any of your own conditions is not permitted.

• A consumer in the sense of the following regulations is any natural person who concludes a legal transaction for purposes that can essentially be attributed to neither their commercial activity nor their independent professional activity. An entrepreneur is any natural or legal person or a partnership with legal capacity who acts in the exercise of their independent professional or commercial activity when concluding a legal transaction.

• We reserve the right to mention our customers on our website with their logo. Please let us know if you do not want us to do this.

§ 2 Conclusion of the contract

• The subject of the contract is the sale of goods or the rental of software solutions.

• When the respective product is placed on our website, we are making you a binding offer for the conclusion of a contract under the conditions specified in the item description.

• The contract is concluded as follows:
  The goods/software solutions that are available for purchasing are specified in an offer. The contract is concluded when the offer is accepted.

• Your requests for the preparation of an offer are non-binding for you. We will make you a binding offer in text form (e.g. by e-mail), which you can accept within 5 days.

• The processing of the order and the transmission of all information required in connection with the conclusion of the contract takes place by e-mail, automatically in some cases. You must therefore ensure that the e-mail address which you have given to us is correct, that the receipt of the e-mails is technically ensured and particularly that the receipt of the e-mails is not prevented by SPAM filters.

§ 3 Right of retention, reservation of ownership of hardware

• A a right of retention can only be exercised if it is with regard to claims from the same contractual relationship.

• The goods remain our property until the purchase price has been paid in full.

• If you are an entrepreneur, the following also applies:

  • We will reserve ownership of the goods until all claims from the current business relationship have been settled in full. Pledging or assignment as security is not permitted until the reserved goods have changed ownership.
  • The goods may be resold as part of the ordinary course of business. In this case, you must assign to us all claims to the value of the invoice amount that you accrue from the resale to us now, and we will accept the assignment. You are also authorised to collect the claim. However, if you do not meet your payment obligations properly, we reserve the right to collect the claim ourselves.
  • If the reserved goods are combined and mixed, we shall acquire co-ownership of the new item as a proportion of the invoice value of the reserved goods in relation to the other processed items at the time of processing.
  • We are obliged to release the securities to which we are entitled by your request insofar as the realisable value of our securities exceeds the claim to be secured by more than 10%. It is up to us to select the securities to be released.

§ 4 Hardware warranty

• The statutory liability for defects applies.

• As a consumer, you are requested to check the item for completeness, obvious defects and transport damage immediately upon delivery and inform us and the carrier of any complaints as soon as possible. Failure to comply with this does not affect your statutory warranty claims.

• If you are an entrepreneur, the following applies notwithstanding the above-mentioned warranty provisions:

  • Only our own information and the manufacturer's product description are deemed to be agreed as the nature of the item, but not other advertising, public promotions and statements by the manufacturer.
  • In the event of defects, we shall provide a warranty by means of reworking or subsequent delivery at our discretion. If the elimination of the defect is unsuccessful, you can either demand a price reduction or withdraw from the contract. The rectification of defects is deemed to have been unsuccessful after a second unsuccessful attempt, unless something else arises from the nature of the item, the defect or the other circumstances. In the event of reworking, we do not have to cover the additional costs which arise from transporting the goods to a location other than the place of fulfilment if the transport does not correspond to the intended use of the goods.
  • The warranty period is one year from delivery of the goods or, in the case of software rental, until the end of the contract period. The shortened deadline does not apply:
    • for culpably caused damage attributable to us resulting from injury to life, limb or health and other damage caused intentionally or through gross negligence;
    • if we have fraudulently concealed the defect or given a guarantee for the condition of the item;
    • for items that have been used in a building in accordance with their normal purpose of use and have made it defective;
    • in the case of statutory rights of recourse that you have against us in connection with warranty rights.

§ 5 Usage rights regarding software rental

• The lessor grants the lessee the non-exclusive right to use the software and run it on a specific tenant/ server.

• An additional installation of the software, for whatever reason, requires another approval from the lessor.

• If no approval is given, the software may not be used.

• The lessee is not permitted to sell, give away, lend or sublet the software.

• The lessee is not entitled to remove or circumvent the existing protection mechanisms of the program against unauthorised use, unless this is required to ensure that the program can be used without problems.

§ 6 Property right infringements

• The lessor indemnifies the lessee from all third-party claims arising from infringements of property rights for which the lessor is responsible at his own expense. The lessee shall inform the lessor immediately of claims asserted by third parties. If the lessee does not inform the lessor immediately about claims which have been asserted, the right to indemnity shall expire.

• In the event of property right infringements, and without prejudice to any claims for damages by the lessee, the lessor may carry out modifications at his own discretion and at his own expense which ensure that a property right infringement no longer exists with regard to the service concerned after prior consultation with the lessee, or acquire the necessary usage rights.

§ 7 Term

• The handover of the software starts with operation or acceptance, and can be terminated in writing by giving 3 months to the end of the quarter‘ notice.

• Termination for important reasons remains unaffected.

• After the end of the contract the lessee must return or destroy all data media received from the lessor and backup copies which have been made, uninstall the software on all devices and irretrievably delete any remaining identifiable software residue from the IT system. At the request of the lessor, the lessee must confirm the fulfilment of the above-mentioned obligations in writing.

• Any termination must be in text form to be effective (§ 126b BGB [Civil Code])

§ 8 Choice of law, place of performance, place of jurisdiction

• German law shall apply. For consumers, this choice of law only applies insofar as the protection granted by mandatory provisions of the law of the country of the consumer's normal residence is not withdrawn (principle of favourability).

• The place of fulfilment for all services from the business relationship with us and the place of jurisdiction is our registered office, insofar as you are not a consumer but a merchant, a legal entity under public law or a special fund under public law. The same applies if you do not have a general place of jurisdiction in Germany or the EU, or if your domicile or habitual abode is not known at the time when the action is filed. The authority to appeal to the court at another legal place of jurisdiction remains unaffected.

• The provisions of the UN Sales Convention expressly do not apply.