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General Terms and Conditions of spo-comm GmbH

§1 General

(1) The following General Terms and Conditions shall form part of the supply and service contracts concluded with spo-comm GmbH.
(2) Deviating, conflicting or supplementary general terms and conditions of the customer shall not become part of the contract, even if known, unless spo-comm GmbH expressly agrees to their validity in writing.
(3) These General Terms and Conditions apply exclusively to entrepreneurs within the meaning of §§ 14, 310 para. 1 BGB.

§ 2 Registration as a customer

(1) In addition to direct orders, you have the option of creating your own user account and thus registering as a customer for our trading system. Only entrepreneurs are eligible to participate (see § 1 para. 3).
You must provide the data required to create the user account completely and truthfully. You are responsible for entering any subsequent changes to your personal data.
(2) The password you have chosen must be kept secret under all circumstances and must not be disclosed to third parties.

§ 3 Written form

Orders and commissions only become binding for spo-comm GmbH upon written confirmation. All agreements made between spo-comm GmbH and the customer in connection with the execution of the contract must be recorded in writing. Collateral agreements, amendments or supplements to the contracts concluded with spo-comm GmbH are only valid if they are confirmed in writing by spo-comm GmbH. This also applies to any waiver of the written form agreed herewith.

§ 4 Offers

(1) The offers of spo-comm GmbH are initially subject to change and non-binding; declarations of acceptance and all orders require written confirmation by spo-comm GmbH to be legally effective.
(2) We sell our goods and other services exclusively to entrepreneurs within the meaning of § 14 BGB.
(3) In the case of immediate delivery by spo-comm GmbH, the written confirmation can also be replaced by an invoice.
(4) The orderer is bound to its contract application for four weeks. A contract is only concluded upon written confirmation of the order or invoice by spo-comm GmbH, but at the latest upon acceptance of the delivery or service by the customer.

§ 5 Delivery and prices

(1) Dates and deadlines specified by spo-comm GmbH are only approximate and non-binding, unless expressly agreed otherwise. spo-comm GmbH is not responsible for delays in delivery and performance due to force majeure and due to events for which spo-comm GmbH is not responsible and which make delivery significantly more difficult or impossible – this includes, in particular, subsequent difficulties in procuring materials, operational disruptions, strikes, lock-outs, shortage of personnel, lack of means of transport, official orders, even if they occur at spo-comm GmbH’s suppliers or sub-suppliers – even in the case of bindingly agreed deadlines and dates. In such cases of force majeure or events for which spo-comm GmbH is not responsible, spo-comm GmbH is entitled to postpone delivery and performance or to withdraw from the contract in whole or in part. In this case, the purchaser will be informed immediately. Any consideration already paid in the event of withdrawal will be refunded immediately.
(2) If the ordered goods cannot be delivered, the customer shall bear the costs for a second delivery.
(3) spo-comm GmbH is entitled to provide partial deliveries and partial services.

§ 6 Warranty

(1) If spo-comm GmbH fails to perform a due service or fails to perform it in accordance with the contract, the customer may demand performance or subsequent performance within a reasonable period of time. At spo-comm GmbH’s discretion, subsequent performance may take the form of rectification or replacement delivery.
(2) After three unsuccessful attempts at subsequent performance, the customer shall be entitled to withdraw from the contract.
(3) Claims for damages, irrespective of their legal basis, are excluded with the exception of compensation for damages caused by intentional or grossly negligent breaches of contract by the legal representatives or vicarious agents of spo-comm GmbH and with the exception of damages resulting from injury to life, body and health for which the legal representatives or vicarious agents of spo-comm GmbH are responsible. This does not imply a change in the burden of proof to the detriment of the customer.
(4) spo-comm GmbH assumes no liability for loss of data during repairs of data carriers. The customer is responsible for ensuring proper data backup.
(5) The customer must inspect the packaging and contents immediately upon receipt of the goods.
(6) The purchaser is only entitled to rights due to non-conforming performance if they are asserted in writing to spo-comm GmbH within eight days of receipt of the goods. The date of receipt or receipt of the complaint by spo-comm GmbH is decisive.
(7) The customer is only entitled to the aforementioned rights due to hidden defects if he has notified spo-comm GmbH in writing within eight days of discovering the defect. The date of receipt/receipt of the complaint by spo-comm GmbH is also decisive here. The burden of proof that the defect is concealed and for the time of discovery of the defect lies with the customer.
(8) If complaints are not made within these deadlines, warranty claims shall be excluded and the ordered goods shall be deemed approved within the meaning of § 377 HGB (German Commercial Code).
(9) The assertion of a purchase price reduction as well as declarations regarding a withdrawal from the contract must be made in writing to be effective.
(10) Werden Betriebs- und / oder Wartungsanweisungen nicht befolgt, Änderungen an den Produkten vorgenommen, Teile ausgewechselt oder Verbrauchsmaterialien verwendet, die nicht den Originalspezifikationen entsprechen, entfällt die Gewährleistung. Für das Nichtbefolgen von Betriebs- und / oder Wartungsanweisungen gilt dies nur dann, wenn die Nichtdurchführung solcher Arbeiten keinen Einfluss auf den Gewährleistungsfall hatte. Die Beweislast für diesen Umstand liegt beim Besteller.
(11) Sollte der Mangel auf unsachgemäße Benutzung, Lagerung oder Handhabung der gelieferten Ware zurückzuführen seien, entfällt jede Gewährleistung.
(12) Soweit Produkte von spo-comm GmbH auftragsgemäß bzw. auf Veranlassung des Bestellers mit vom Besteller gestellter Software ausgestattet werden, besteht keine Gewährleistung für Fehlfunktionen und Schäden jeder Art, deren Ursache in dieser Software begründet sind. spo-comm GmbH übernimmt insoweit keinerlei Gewährleistung, auch nicht in Bezug auf eine Kompatibilität ihrer Produkte / Waren mit vom Besteller gestellter Software.
(13) Ansprüche auf Nacherfüllung verjähren in 12 Monaten ab gesetzlichem Verjährungsbeginn; Entsprechendes gilt für Rücktritt und Minderung. Diese Frist gilt nicht bei Vorsatz, arglistigem Verschweigen des Mangels sowie bei Nichteinhaltung einer Beschaffenheitsgarantie.

§ 7 Default

(1) If spo-comm GmbH defaults on its performance obligations, the grace period to be set by the customer must be at least four weeks. Reminders and deadlines set by the customer must be in writing to be effective.
(2) If the customer is in default of acceptance, spo-comm GmbH is entitled to demand compensation for the resulting damage as well as reimbursement of any additional expenses. The risk of accidental loss or accidental deterioration of the purchased goods shall pass to the orderer at the time of default of acceptance.
(3) If the orderer refuses to accept the object of purchase/delivery after the expiry of a grace period set for it or declares that it does not wish to accept it, spo-comm GmbH may refuse to fulfill the contract and demand compensation for non-fulfillment.
(4) In this case, a lump sum of 25% of the purchase or order price is to be paid as compensation, unless the customer can prove that the damage was lower. spo-comm GmbH reserves the right to assert claims for higher damages.

§ 8 Protection and copyrights

(1) The purchaser undertakes not to infringe any industrial property rights or copyrights with goods purchased from spo-comm GmbH. In the event of such infringements, the purchaser undertakes to indemnify spo-comm GmbH against any possible claims by third parties. This also applies in the event that the customer designs the object of purchase in such a way that this may result in infringements of industrial property rights.
(2) Programs and associated documentation provided by spo-comm GmbH are only intended for the purchaser’s own use within the scope of a simple, non-transferable license, and exclusively on the products supplied by spo-comm GmbH.
(3) The customer may not make these programs and documentation available to third parties without the written consent of spo-comm GmbH, not even in the event of the resale of the hardware supplied by spo-comm GmbH.
(4) Copies may be made solely and exclusively for archiving purposes, as a replacement or for troubleshooting; spo-comm GmbH shall not be liable and/or reimbursed for such copies.
(5) If originals of purchased hardware or software bear a note on existing copyright protection, the customer shall also affix such a note to any copies made.

§ 9 Retention of title

(1) All goods delivered by spo-comm GmbH shall remain its property until all claims arising from the business relationship with the Buyer have been settled.
(2) spo-comm GmbH is entitled to demand the return of the reserved goods from the customer without setting a grace period if the customer is in arrears with the fulfillment of its obligations towards spo-comm GmbH in whole or in part. In this case, the customer shall allow spo-comm GmbH to take back the goods subject to retention of title and shall grant spo-comm GmbH access to its business premises for this purpose.
(3) The customer is obliged to treat the reserved goods with care as long as ownership has not yet been transferred to him. In particular, he is obliged to insure them adequately at his own expense against theft, fire and water damage at replacement value (note: only permissible for the sale of high-value goods). If maintenance and / or inspection work has to be carried out, the customer must carry this out in good time at his own expense. As long as ownership has not yet been transferred, the customer must inform spo-comm GmbH immediately in writing if the delivered item is seized or exposed to other interventions by third parties. If the third party is not in a position to reimburse the judicial and extrajudicial costs of proceedings pursuant to § 771 ZPO, the customer shall be liable to spo-comm GmbH for the corresponding loss.
(4) The purchaser is entitled to resell the goods subject to retention of title in the normal course of business. The customer hereby assigns to spo-comm GmbH the claims of the purchaser arising from the resale of the reserved goods in the amount of the remuneration agreed with spo-comm GmbH (including VAT). This assignment applies irrespective of whether the goods have been resold without or after processing. The purchaser remains authorized to collect the claim even after the assignment. However, spo-comm GmbH will not collect the claim as long as the customer meets its payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed and payments have not been suspended.
(5) The treatment and processing or transformation of the object of sale by the purchaser is always carried out in the name of and on behalf of spo-comm GmbH. In this case, the expectant right of the purchaser to the object of sale shall continue in the transformed object. If the object of sale is processed with other objects not belonging to spo-comm GmbH, spo-comm GmbH acquires co-ownership of the new object in the ratio of the objective value of the object of sale to the other processed objects at the time of processing. The same applies in the event of mixing. If the mixing takes place in such a way that the purchaser’s item is to be regarded as the main item, it is agreed that the purchaser transfers proportional co-ownership to spo-comm GmbH and keeps the resulting sole ownership or co-ownership for spo-comm GmbH. In order to secure spo-comm GmbH’s claims against the customer, the customer also assigns to spo-comm GmbH such claims against a third party that accrue to it through the combination of the reserved goods with a property. spo-comm GmbH hereby accepts the aforementioned assignments.
(6) spo-comm GmbH undertakes to release the securities to which it is entitled at the request of the purchaser if the value of the securities exceeds the claims to be secured by more than 20%.

§ 10 Statute of limitations

All claims against spo-comm GmbH, irrespective of the legal grounds, are subject to a limitation period of 12 months from receipt of the goods by the customer.

§ 11 Place of performance and jurisdiction, validity clause

(1) The place of performance for delivery, payment and supplementary performance as well as the place of jurisdiction is Nuremberg.
(2) Should individual clauses of these General Terms and Conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining clauses. The contracting parties undertake to replace an ineffective clause with a provision that comes closest to the economic purpose of the ineffective clause and is effective.