Terms and Conditions of Huf Secure Mobile GmbH
§ 1 General Aspects and Areas of Application
These terms and conditions are valid for all business relations of Liberkee GmbH and its affiliated companies (“Provider“) with its customers (“customer“).
The terms and conditions are valid for contracts for the sale and/or the supply of any moveable goods (“goods“) irrespective of whether these goods are manufactured by us or are purchased from suppliers (§§ 433, 651 BGB), and for providing services.
Unless otherwise specified, these terms and conditions are valid in the version that is current at the point in time when the order is placed by the customer. They are to be viewed as a general agreement for all future contracts for identical goods or services without being expressly mentioned for each business transaction once these were provided in their currently applicable version and in writing for first-time orders.
Even in cases in which they are not expressly named at the conclusion of identical contracts, the terms and conditions of the provider are exclusively applicable in the version that is current at the time when customer agrees to them, and which can be viewed under www.huf-sixsense.com/terms-and-conditions at this point in time, unless otherwise specified in writing.
§ 2 Conflicts with the Terms and Conditions of Customers
1. During the time of the contract closing and afterwards, there exists an understanding between the provider and the customer (“parties“) that the terms and conditions are exclusively valid for this contractual business relationship. No deviating agreements can be made conclusively, e.g. for implicit deliveries. Any alterations must be made in writing, and expressly, these cannot be based on additional or conflicting terms and conditions of the customer.
2. Individual agreements with customers in specific business cases (including collateral agreements, additions and alterations) have priority over these terms and conditions. For the terms of such agreements, unless there is evidence to the contrary, a written contract or a written confirmation is applicable.
§ 3 Contract Items, Scope of Service
1. Items of the terms and conditions are, among other, goods and services, the supply of standard software and the granting of user rights according to § 4, and furthermore the supply of the individual services and goods ordered in conjunction with the purchase.
2. Prior to the conclusion of the contract, the customer ensures that the specification of the software is in line with his needs and requirements. The customer is aware of the significant functional characteristics and conditions of the software. The provider will expressly assume no warranties or guarantees unless a legally binding agreement to the contrary has been made between the parties. Product descriptions, depictions, test programs and so forth are to be considered service specifications and these are no warranties or guarantees.
4. The scope, type and the quality of the supply and the specification of the software are defined by the contract signed by both parties or by the order confirmation of the provider, otherwise by the offer of the provider. Further specifications or requirements are only part of the contract when these are agreed upon in writing by both contract partners or the provider has confirmed this in writing. Any subsequent changes to the scope of service require a consent in writing or a written confirmation by the provider.
5. All provisions for supplies and services of the provider are based on the technology as available when the contracts are concluded.
§ 4 Rights of the Customer to the Software
1. The software is legally protected. Copyrights, rights for patents and trademarks and all ancillary rights to the software including all additional items which are provided by the provider to customer during the contract initiation and during the fulfillment of the contract, or to which the customer is given access to, belong within these contractual business relationships exclusively and solely to the provider. In cases in which rights of third parties exist, the provider will obtain the right of use from these for updates.
2. The customer has no rights to the source code of the software. The software and the hardware as well as all technology relating to these and all technological know-how will remain the intellectual property of the provider.
3. The SIM card remains the property of the provider unless a contractual agreement to the contrary has been made or no SIM card is provided by the provider. The provider reserves the right to block the SIM card in case of a violation to the contract or a use that violates applicable laws.
4. The provider is allowed towards the customer to use open source software when to the best of his knowledge (i) this software is provided as open source software or (ii) the provider is authorized to use this software and provide it to third parties due to an additional separate user agreement. The open source software is a required system component, but is not included in the sale.
5. The customer is only authorized to use the software for own purposes. The provider grants a standard, non-transferable and non-licensable right of use to the customer which may be revoked at any time by the provider.
6. Without prior written consent from the provider, the customer is not allowed to copy the software or to store it on a mass storage device.
7. Without prior written consent from the provider, the customer is not allowed to create a back-up version of the software. Designations in reference to copyright, trademarks and product names must not be deleted, altered or hidden. Any copies that are not in use any more, are to be deleted or destroyed. Any access to third parties is strictly prohibited. The customer is prohibited from opening the hardware, de-compilation or re-engineering activities or other modification to the software and hardware.
8. Without any prior consent from the provider in writing, the customer is prohibited from providing the software to any third party. In cases in which the software is provided to a third party, it is the responsibility of the customer to bind the third party to the same standard of the provider that is applicable to the customer.
9. All other activities of utilization, especially leasing, rental and dissemination of data in physical and non-physical form, the use of the software by or for third parties (e.g. via outsourcing, computer and data centers, application service providing) require a prior consent in writing from the provider and are otherwise strictly prohibited.
10. Manipulations of any kind to the software are only allowed in exceptional cases and do require prior consent from the provider and are to be handled in accordance with the instructions of the provider in order to remove errors and thus only in the scope which is required to ensure the designated use of the programs.
11. In case of any violation of the customer to the contractual agreements as specified in paragraph § 4, the provider retains the right for an immediate termination of the services provided and may immediately exercise his right for an immediate termination.
12. Any e.g. contract items, documents, proposals, test programs of the provider to which the customer is granted access before, during or after the contract closing are viewed as intellectual property and business and company secrets of the provider and must not be used in which way ever without written consent from the provider and must be kept confidential according to § 13 at all times.
13. The customer acquires the same rights to software that has been modified, expanded or newly created as with standard software.
§ 5 Conclusion of the Contract and Contract Content
1. All offers of the provider are non-binding. This is unchanged even when the provider sends catalogues, technical documentations (e.g. drawings, plans, calculations, data for DIN norms), additional product descriptions and documents – also in electronical form – to customers, for which the provider retains proprietary rights and copyrights.
2. The order of goods by the customer is viewed as a legally binding contract offer when the order is made in writing.
3. The order agreement can be handled in written form (order confirmation) or simply by delivering the goods to the customer.
4. The contract content is exclusively defined by the order confirmation and these terms and conditions. In cases in which the order confirmation deviates from the customer order, the contract is based on the order confirmation unless the customers objects to this within five working days and in writing once he receives the order confirmation.
5. Other content, especially items shown in catalogues or other promotion materials of the provider, will only become content of the contract when they are specifically listed in the order confirmation.
6. The sales prices that are stated in the order confirmation are exclusively in reference to the goods sold and are ex works for the respective plant of the provider excluding the legally binding sales tax to the applicable amount.
§ 6 Delivery, Shipping and Receiving of Goods
1. Delivery times will be agreed upon individually or will be stated by the provider during the order confirmation process.
2. Any delays within the scope of the delivery can only be held against the provider and result in claims of the customer when these have been caused willfully or with gross negligence by the provider. Under no circumstances do these include delays caused by acts of God or other events beyond the control and influence of the provider.The latter is to be assumed e.g. whenever the provider, in order to manufacture or to deliver the contractually agreed goods, is dependent on receiving goods or services from a third party and a delay is caused by the provider not receiving these goods or services from the third party on time. The provider does not assume the risk of procurement. If agreed delivery times or not met for reasons beyond the control of the provider, the provider shall inform the customer immediately and shall inform him at the same time about the new estimated delivery time. Should it become not possible to supply the goods within the new delivery time, the customer will be well within his rights to cancel the order completely or in parts. In such a case, the provider shall reimburse the customer for payments made in advance.
3. The shipment of goods by the provider is made to the shipping and delivery address. The address or addresses as stated in the order confirmation of the customer will be considered as shipping and delivery address unless the customer expressly names a different address for the delivery.
4. All costs for shipping and handling are to be paid by the customer as well as further costs that are incurred for the transport, the import and export of the goods including all fees and duties arising from public and civil claims unless these costs are due to gross negligence by the provider.
5. The delivery and shipping is handled by the provider or third parties commissioned by the provider. The provider will select the specific manner of transport. Any insurances for the transport of the goods, e.g. against theft or damages, will only be taken out by the provider when this has been agreed upon with the customer in writing. In such a case, the customer will bear all cost for the insurance coverage and policies.
6. The following rules apply for the transfer of risk:
a)If goods are delivered to the company premises of the provider, the risk for damages to the goods or any loss of goods is transferred to the customer once the customer is informed that the goods have arrived and are ready for collection. b)If the goods are not delivered to the company premises of the provider, the risk for any damages to the goods or any loss of goods is transferred to the customer once he is in possession of the goods, or in cases of default of acceptance, at the moment when the provider offers the collection of the goods at the agreed delivery address.In cases in which a third party is commissioned for the transport of the goods, the risk is transferred once the provider has handed the goods to the third party.
7. Should the customer delay the acceptance of the goods, the provider is within his rights to cancel the contract altogether once the provider has granted the customer a grace period of at least seven days for the acceptance of the goods during which the customer has not accepted the delivery. A cancellation of the contract does not affect further claims of the provider due the default of acceptance by the customer.
§ 7 Contractual Duties of the Customer
1. It is the duty of the customer to check received goods for any transport damages. In cases in which there are such damages, the customer is required to document these immediately and to report them to the provider in written form including photographs. The provider is required to immediately inform the customer if these goods are to be sent back or are to be readied for collection. The provider will bear the costs for the return shipment in such a case.
2. Regarding the software, the following applies: the customer will test all modules very thoroughly in regard to their usability for the designated applications before integrating the software into his existing system otherwise starting productive use, but not any later than four weeks after delivery. This also applies to programs which are given to the customer on the basis of warranty agreements or maintenance contracts. The customer is obliged to inform the provider of the test results immediately after completion of the tests. If the provider does not receive any test results from the customer within a period of 5 weeks after delivery, the software is deemed to be tested and free of defects.
With regard to the software, the customer shall take appropriate precautions in the event that the software does not work properly in whole or in part (e.g. by data backup, documentation of software use, fault diagnosis, regular checking of the results, emergency planning). It is his responsibility to ensure the functionality of the working environment of the software.
3. The customer is required to cooperate with the provider and to inform the provider for example in regard to the interfaces required and to further inform the provider about any modifications to these interfaces in advance. The provider is allowed at any time to upload updates to the software to remove mistakes or to optimize the system.
§ 8 Payments of the Customer
1. All invoices of the provider are payable within a payment period of fourteen (14) days without any deduction based on the date of the invoice. Should no payment be made within this period, the customer has defaulted on the payment. All payments are to be made into the bank account or bank accounts which are named in the invoice.
2. In cases of default of payment, the provider is entitled
a) to cancel the contract orb) to stop further deliveries to the customer orc) to charge the customer with interest for the amount due which are calculated at 9 percentage points above the current base interest rate until the invoice has been paid completely by the customer.
3. The provider is entitled to request an advance payment for the amount due from the customer when during the conclusion of the contract and to the best of his knowledge a possible risk for a default of payment exits with the customer due to a lack of funds that may arise in future. He will inform the customer about this request in writing.Should the customer fail to make the requested advance payment subsequently and within a period of 14 days upon receiving the notification, the provider may cancel the contract entirely.
4. If the financial circumstances of the customer deteriorate significantly, in particular if insolvency proceedings are applied for, the provider can demand for outstanding supplies advance payment, cash payment or other security before delivery of the goods.
§ 9 Retention of the Title, Disposal of the Goods by the Customer
1. Until all open claims arising from the contract between the provider and the customer are settled completely, the goods remain the property of the provider.
2. The customer is required to immediately inform the provider in writing should he have chosen to enter into any contractual commitment with a third party before fulfilling his payment obligations involving the goods for which these must be made available. In such a case, he is obliged to inform the provider about the type of the transaction and to name his future business partner for this contractual commitment.
3. The customer is required to inform the business partner with whom he plans to enter into a contractual commitment prior to the contract conclusion and in written form that the title to the goods is still retained by the provider. A copy of this notification is to be sent to provider immediately.
4. A physical disposal of the goods prior to the fulfillment of the payment obligations can only be made once a written confirmation from the provider to do so is obtained. This confirmation can be granted by the provider upon conclusion of the contract.
5. In a case in which the physical disposal of the goods is made by the customer prior to the complete fulfillment of his payment obligations, i.e. thus for goods to which the provider still retains the title of ownership, the following regulations apply irrespective of whether the disposal was granted by the provider or not.
Is the disposal made
a) by merging, mixing or processing the goods according to §§ 946-950 BGB, the provider will receive co-ownership in these new products to the value which is based on the relation of the goods to the goods with which these are merged, mixed or processed. § 947 Abs. 2 BGB is not affected whenever the goods of the provider are the main component in the new product;
b) by selling or transferring the goods or the new products according to clause 5 a), the customer is required to waive all rights and claims arising from the sale in favor of the provider in writing within seven days if applicable. This shall be accepted by the provider. An additional waiver will not become necessary.
c) by a different disposal of these goods for which the customer is still required to waive all rights and claims arising from the underlying exchange transactions in favor of the provider in writing within seven days if applicable and where the goods are concerned. This shall be accepted by the provider. An additional waiver will not become necessary.
6. In cases as described in clause 5 b), the provider is required to release the rights and claims transferred to him when requested by the customer for cases in which the realized value of this collateral exceeds the amount due from the customer by more than 10%. The provider will decide which part of the collateral he will release.
7. In cases as described in clause 5 a), the customer has the right for a retransfer of ownership towards the provider, and in cases as described in clause 5 b) and c), the customer is owed the right for the reassignment of these claims, provided all payment obligations of the customer towards the provider have been met completely.
8. In cases of seizures or other interventions by third parties, the customer is obliged to inform the provider immediately thus the provider can object according to § 771 ZPO. Should the customer fail to inform the provider accordingly, the customer will be liable for any damages resulting from such activities.
§ 10 Material Defects, Rights of the Customer in Cases of Material Defects
1. All information regarding the properties of the goods that the customer receives from the provider via sales catalogues, price lists or other promotion documents, are under no circumstances to be considered sourcing agreements or warranties. Agreements of this kind need to be made between the contract partners expressly in writing.
2. The software is in the agreed state and is suitable for the contractually assumed use for standard application without further agreement. The software has the quality that is to be expected of this type of software, however it is not without flaws. Limitations, in regard to the functionality of the program which may arise from hardware defects, environmental conditions, operating errors and similar cases, are not a flaw. A minor reduction of the quality will not be taken into account.
3. Furthermore, the provider will not assume any responsibility
a) for defects of the goods that arise from product descriptions and specifications of the customer;
b) for any defectiveness of the goods when the due purchase price has not been paid by the due date;
c) for any parts, materials or other pieces of equipment which were manufactured by the customer or which were commissioned by the customer;
d) for any product defects which may arise due to incorrect installation, assembly or use, faulty use, negligence or other reasons relating to the environment of the customer, including third parties commissioned by the customer;
e) for reduced functionality or system failures which are outside the control of the provider, e.g. failures in the mobile data networks, interruptions of connections of any kind;
f) the listed exemptions from liability do not apply in such cases in which defects are due to ill intent or gross negligence by the provider.
4. Legal rights accruing from defects can only be claimed by the customer if the goods are immediately checked for defects upon delivery, and the provider is informed not later than two weeks after the delivery by receiving a written report from the customer in which all defects are described in detail. If defects are not recognizable at the time of delivery, these are to be reported in writing once they are detected.
5. Reporting defects does not equal the assertion of any claims due to defects unless the customer clearly states such when reporting the defects. Otherwise an additional written statement is needed from the customer for the assertion of specific claims due to defective goods.
6. When defects are reported, the provider retains the right to examine the incriminated goods. For this reason and at his own option, he can request the customer to provide him with access to the goods at their current location or have the goods send back to his business premises, for which the provider will bear the incurred cost. If the examination of the goods by the provider show that the goods are not defective and that such could have been noticed by the customer, the provider has the right to request the customer to reimburse him for any cost incurred, especially for transport or for the shipping and ha ndling of the goods.
7. If the delivered goods are inadequate, the provider may choose if he either wants to perform a subsequent fulfillment to eliminate any defects (rectification) or if he wants to make a new shipment of non-defective goods (replacement delivery). The right of refusal of the provider for a subsequent fulfillment remains unaffected in accordance with the legal requirements. The provider has the right to make the owed subsequent fulfillment dependent on the payment of the customer for the goods, however the customer has the right to retain a partial payment of the balance due which is in relation to the defective parts.
8. The customer is required to allow for an opportunity and an appropriate period of time until which the provider may perform the subsequent fulfillment. Goods that have been replaced by the provider are to be sent back to the provider if this is requested by him.Subsequent fulfillments do not include the installation or the removal of incriminated parts. The cost for installation or removal will be charged to the customer.
9. Additionally, defects in regard to the software are to be reported in writing in such a manner that these error symptoms are described comprehensively and, if applicable, that these are proven by written records, hard copies and other methods that help to illustrated the defects. The notice of defects needs to illustrate how the listed defects can be reproduced. The possibility to reproduce such defects is a requirement for the acceptance of any claims.In cases of material defects in regard to the software, the provider has the right for a subsequent fulfillment based on the following regulations: the subsequent fulfillment to remove the defects is handled by the provider at his own option or by supplying a software that is free of these defects or by showing the customer how to avoid any negative impacts these defects may cause. In cases of defect software, at least three attempts to rectify these defects are to be accepted by the customer. Furthermore, the customer is expected to accept a newer and comparable version of the program or a comparable prior version of the program without the defects in cases in which this is reasonable. The provider has the right to reject rectification measures if these are not economical sensible or manageable. In these cases, the customer may cancel the contract.
10. The customer will support the provider during the failure analysis and during attempts to rectify the defects by describing any problems clearly, by informing the provider in an extensive manner and by allowing for the necessary time and opportunity needed by the provider in order to remove the defects. The provider may handle the removal of the defects at his own option either at the premises of the customer or via remote analysis. The customer is required to provide the technical requirements and further, to allow for access to the software upon receiving a request by the provider to do so. For this, the customer will bear any incurred cost.
11. The contract partners agree on the following defect classes and reaction times:a) Defect Class 1: Operation-impending defects/ the defect prevents the use of the goods or of the software: the defect prevents the use at the customer; no workaround is available: the provider immediately begins with the removal of the defects and continues these activities vehemently even beyond the regular business hours (working days between 08:00 a.m. and 05:00 p.m.).
b) Defect Class 2: Non-critical operating defects: the defect impedes operations at the customer extensively / the defect impedes the usage of the goods: the use of the software at the customer can be realized when using a workaround or with temporary limitations or difficulties: upon receiving a timely notification, the provider shall begin with the removal of any such defects on the same day if reasonable, or, if the notification is received with a delay, at the beginning of the next working day. The provider shall continue his efforts during the regular working hours. The provider may offer a temporary workaround initially, and remove the defects at a later date if this is reasonable for the customer.
c) Defect Class 3: Miscellaneous defects: the provider shall remove the defects with his next regular program update if this is reasonable for the customer.
12. The period of limitation for any claims of the customer due to defects is three months. The period starts with the supply of the goods to the customer. The legally mandated statute of limitation is valid for claims that are due to faulty goods or are due to intent or deception by the provider or as far as the provider has assumed a guarantee.
§ 11. Limitation of Liability and Claims for Damages
1. If not stated to the contrary in the terms and conditions (including further regulations), the provider shall be liable for any violations to these contractual and non-contractual duties in accordance with the legal regulations.
2. The provider is liable for any claims – independent of the legal basis – on the basis of the encumbrance liability for intent and gross negligence. For simple negligence, the provider is only liable (and hereby with reservations in view to mitigating factors that may arise from the standard of liability in accordance with the legal regulations, e.g. due care for own affairs) fora) claims arising from loss of life, bodily injury or harmfulness to health b) for claims arising from a substantial violation to a central contractual duty (i.e. a duty whose fulfillment is in itself the basis for a proper implementation of the contract and for which the contract partner can regularly expect a compliance); in such cases, any claims for compensation are limited to the foreseeable and typically encountered damages but not more than 10% of the order value per claim and 5% of the order value for all claims arising from and in connection with the contract as a whole.c) The limitation of liability as stated in clause 2 is also valid for a breach of duty by or respectively for a group of persons for whose violations the provider is liable in accordance with the valid legal regulations. They are not applicable if the provider has maliciously hidden a defect or has assumed a guarantee for the condition of these goods and for any claims of the customer in accordance with the product liability laws.
3. The limitation of liability according to clause 2 as stated above, are also applicable in meaning for the reimbursement of costs and provisions.
§ 12 Additional Rights and Duties of the Customer
1. The customer is only allowed to offset due payments if his claim is uncontested and has been decided in a legally binding manner. The counter-claim is only uncontested or is decided legally binding, if both contract partners shall arrive at an agreement in regard to the reason and the amount. This can only be assumed once the counter-claim as been confirmed by the provider in writing to at least the amount that is to be offset.Additional legal requirements for offsetting payments are not affected.
2. The customer may only transfer any rights arising from the contractual agreement if the provider has given written consent. Any request for transfer needs to be send by the customer to the provider immediately and in writing. If a transfer of rights is made without the prior consent of the provider, the non-established or rejected request will be viewed as a prohibition of assignment agreement between the contract partners. § 354a HGB will remain unaffected.
3. The customer must not initiate any measures or have these initiated by a third party which may violate the rights of intellectual property as they are used by the provider in connection with the goods. In particular, any brand names or other distinctive features which are imprinted on or which are attached to the goods of the provider must not be concealed, or changed, or removed by the customer.
4. If the customer wants to further process the goods, especially in order to create new products, the customer will give the provider the assurance that the new products will not violate the commercial trademarks of any third party.The customer will indemnify the provider against any possible liability that may arise from any such violations and assumes all fees the provider may incur in such a case in which he will need to defend himself against claims resulting from a violation.
§ 13 Confidentiality and Data Protection
1. The contract partners are contractually committed to keeping items to which they will be given access to prior and during the fulfillment of the contract by their respective contractual partner (such as e.g. software, documents, information regarding prices and sales terms and which are legally protected and / or contain business and trade secrets or which are designated as confidential) confidential at all times and beyond the term of the contract, unless these are already made public without any violation to the agreement of confidentiality. Each contract partner will store these items in such a manner that safeguards against any access of a third party.
Should the customer violate his duty of confidentiality, he is liable to pay damages in the amount of 10 % of the order value with the customer but at least EUR 10,000 to the provider for each case of breach of duty as contractual penalty in accordance with § 13 while simultaneously waiving any legal right for an objection to the continuation of offense. The contractual penalty is hereby defined by reasonable discretion. For this, relevant factors are the importance of the violation of duty, the negative impact for the provider (including any intangible negative impacts) and the degree of violation and fault of the customer.In cases in which the contract partners do not arrive at an agreement, the decision of an arbitrator i.e. a judge of the Higher Regional Court of Düsseldorf as appointed by the president of this Higher Regional Court shall be legally binding once both contract partners have given their statements (a written statement will suffice).
2. The customer will grant access to the contractual items only to those employees and any additional third party who, in order to perform their operational duties, and must have access to these. He will instruct these persons accordingly about the classified nature of these items.
3. The provider shall process the data of the customer as necessary for the fulfillment of the business processes according to the regulations for data protection.
The provider may name the customer as a reference customer once his duties have been successfully completed.
The customer is committed towards the provider to inform his customers in regard to the tracking and the collection of vehicle information if the customer should choose to use this function.The provider is committed to deleting the date in accordance with the regulations for data protection, the legal requirements or when demanded by the customer.
The customer is informed that all data on the IT systems of the provider is stored at a European computer center.. Deviating locations for data storage are to be agreed upon taking into account the costs incurred in each case.
§ 14 Other Contractual Clauses
1. These terms and conditions and any contracts which are in reference to them, shall be governed by guidelines and regulations of the German law.Except where these terms and conditions constitute deviating agreements, the legal regulations are applicable. Not applicable are the guidelines and regulations of the UN conventions for the international sale of goods (CISG).
2. The place of jurisdiction for disputes arising from these terms and conditions and for contracts which are in reference to them, is the city of Wuppertal. The provider has the right to file suit to the court at the seat of the customer.
3. Any deviation to the terms and conditions for contracts that are in reference to them can only be made, if the both contract partners agree to them expressly, mutually and in writing. If the deviations are defined during the conclusion of the contract and not subsequently, these become only applicable if they are expressly stated in the order confirmation of the provider. The aforementioned regulations are also applicable if the written from requirement is waived.
4. Should individual clauses of the terms and conditions become invalid or unenforceable or should they become invalid or unenforceable once a contract is concluded, this shall not affect any other contractual aspects of this contract. In such a case, the invalid or unenforceable clause shall be substituted by a valid and enforceable clause which shall be effective in a manner which most closely reflects the economic objective intended by both contract partners in regard to the clause which has become invalid or unenforceable.
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