General Terms and Conditions of Business and Delivery (GTC) of VIREED UG (limited liability) (Status: 07/29/2020)

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§ 1 General - Scope

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1. These General Terms and Conditions of Business and Delivery (hereinafter referred to as "GTC") are binding for all contractual relationships, agreements and offers of VIREED UG (limited liability), Hamburg, (hereinafter referred to as "VIREED") towards customers/orderers (hereinafter referred to as "customers").

2. We do not recognize conflicting or deviating conditions of the customer, unless we have expressly agreed to their validity in writing. Our terms and conditions also apply if we enter into the contractual relationship with the customer without reservation in the knowledge of conflicting or deviating terms and conditions of the customer.

3. All agreements made between us and the customer for the purpose of executing the transfer agreement are set out in writing in the transfer agreement, its appendices and in particular these General Terms and Conditions.

4. In the case of merchants, these terms and conditions also apply to all future transactions between the contracting parties, without the need for a renewed reference to this.

5. Legally relevant declarations and notifications that are to be submitted by the customer to VIREED after the conclusion of the contract (e.g. setting of deadlines, notification of defects, declaration of withdrawal or reduction) must be in writing in order to be effective.

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§ 2 Leaving and procurement of the subject matter of the contract, delivery

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1. VIREED undertakes to leave the subject matter of the contract to the customer for the duration of the contract.

2. The subject matter of the contract consists of individual components (controller, screen, computer unit, software, etc.). VIREED procures the individual components from third parties on the basis of corresponding procurement contracts (hereinafter individually the "procurement contract" or collectively the "procurement contracts") and combines the individual components into the subject matter of the contract. The customer does not assume any obligations towards the respective suppliers or towards VIREED from the procurement contracts. VIREED hereby transfers to the customer who accepts this all rights and claims to which it is entitled from and in connection with the procurement contracts against the suppliers with effect from the time the subject of the contract is handed over. Rights from non-contractual performance or breach of duty by the supplier - including statutory rights of withdrawal - as well as from any guarantees relating to the delivery or the properties of the subject matter of the contract or its individual components are also transferred, even if these were given by third parties. Excluded from the transfer according to this paragraph (2) are the rights and claims of VIREED

• to the transfer of ownership of the subject matter of the contract and its individual components and/or the right to use the software used in the subject matter of the contract - also within the scope of supplementary performance -,

• from a reversal of the procurement contract,

• from reduction,

• for compensation for damage incurred by VIREED, in particular from its payments to suppliers, and

• to declare the contestation of the respective procurement contract.

The customer is hereby expressly authorized by VIREED to assert the rights remaining with VIREED in this respect, with the exception of the rights of rescission. The customer undertakes to assert and, if necessary, collect all rights and claims assigned to him or assigned for exercise in his own name and at his own expense without delay and only within the statutory or contractually agreed limitation period. The customer must demand that payments that he is authorized to assert are made to VIREED. The customer is informed that damage incurred by VIREED from the late assertion of rights and claims will be borne by the customer. VIREED must be informed immediately of any assertion of rights and kept up to date without being asked. The customer cannot assign the rights and claims assigned to him or assigned for exercise to third parties without the consent of VIREED; he will take the interests of VIREED into account to a reasonable extent when pursuing them.

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1. Unless otherwise stated in the transfer agreement, delivery “ex works” is agreed. The risk of the subject of the contract passes to the customer upon delivery of the goods to the forwarding agent or carrier. VIREED hereby assigns all claims arising to VIREED in connection with the realization of the risk and the dispatch of the subject matter of the contract to the customer who accepts this.

2. Transport packaging and all other packaging in accordance with the packaging regulations will not be taken back. The customer is obliged to ensure that the packaging is disposed of at his own expense. VIREED shall bear any additional costs for transport insurance.

3. The customer is obliged to inspect the subject matter of the contract for defects immediately upon receipt. The customer will immediately confirm to VIREED the contractual delivery of the subject matter of the contract (e-mail is sufficient).

4. If there are defects that can be identified after careful inspection, the customer is obliged to notify VIREED of these in writing (e-mail is sufficient) within 7 working days of receipt of the goods. If the customer fails to carry out the inspection or if the customer does not notify VIREED of a defect he has identified within the period set above, the subject matter of the contract shall be deemed to be in accordance with the contract. VIREED must be given the opportunity to convince itself of the defects reported.

5. The customer is aware that for the proper operation of the subject matter of the contract, he must have broadband Internet access with a LAN network. The customer must ensure the functionality of the broadband Internet access. The customer bears the costs incurred in connection with the maintenance of broadband Internet access.

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§ 3 Payments

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1. The customer undertakes to make the agreed payments. These are the monthly installments for the contract period.

2. Agreed payments include, as the case may be

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Type of contract, any additional payments at the beginning and end of the agreed fixed or imputed contract period and any additional compensation for use in the event of subsequent delivery in accordance with Section 5 (3).

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1. The respective installments are payable in advance. The first is due at the beginning of the contract period. The second installment is due on the 1st of the following month in the case of monthly payment, and on the 1st of the third month following the beginning of the contract period in the case of quarterly payment. The other installments are payable accordingly. If a special payment is agreed in the contract, this is to be made as a one-time payment at the beginning of the contract period. It is part of the agreed payments and not a deposit.

2. If VIREED does not already have an effective mandate for the SEPA direct debit procedure, the customer undertakes to give VIREED a corresponding mandate. The customer will issue a mandate to VIREED based on the template provided by VIREED (SEPA direct debit mandate).

3. Otherwise, the agreed payments take into account the taxes applicable at the time the contract was concluded. In the event of changes in tax and duty law or the relevant administrative procedures after this point in time, VIREED reserves the right to adjust the agreed payments accordingly.

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§ 4 Rights of VIREED to the subject matter of the contract

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1. The subject matter of the contract, including its individual components, remains the property of VIREED.

2. The customer must treat the subject of the contract with care. He must insure it adequately at his own expense against fire, water and theft damage at replacement value.

3. The customer may only change the subject matter of the contract, change its location and leave it to third parties with the written consent of VIREED. § 5 paragraph 3 remains unaffected.

4. If maintenance and inspection work becomes necessary, VIREED will carry this out at its own expense and notify the customer of the work being carried out in good time. The customer will provide VIREED with access to the subject matter of the contract.

5. VIREED already agrees to the necessary transfers to third parties for the purpose of repair, maintenance and care measures. This also applies to supplementary performance. VIREED also agrees today to changes to the subject matter of the contract that are carried out by the respective supplier or manufacturer or by third parties authorized by the supplier or manufacturer in the event of necessary maintenance and/or repair measures.

6. The customer must ensure that VIREED also receives unrestricted ownership of the changed subject matter of the contract.

7. If and to the extent that the software is replaced in connection with the maintenance of the software, the agreements made in these GTC for the individual components of the subject matter of the contract shall apply accordingly.

8. The customer may combine the subject matter of the contract with a piece of land or a building only for a temporary purpose and not with another movable thing to form a single thing.

9. The customer is obliged to protect the subject matter of the contract from access by third parties. He will notify VIREED immediately in the event of access.

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§ 5 Liability for Material and Legal Defects

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1. VIREED is only liable to the customer for material and legal defects in the subject matter of the contract and for the lack of properties that VIREED has promised the customer, or for any other service not provided in accordance with the contract, insofar as VIREED pays the customer who accepts this the obligations it has against its respective suppliers from the procurement contracts claims and rights to which it is entitled. All claims and rights of VIREED to supplementary performance, withdrawal and reduction due to non-contractual performance are also transferred with the claims and rights mentioned in § 2 Para. 2. § 2 paragraph 2 applies to the assertion of the transferred claims.

2. Otherwise, the liability of VIREED is based on the provisions of Section 11 below.

3. In the case of material and legal defects in the subject matter of the contract and in the absence of properties that VIREED has promised the customer or any other service not provided in accordance with the contract, the customer will first contact VIREED and notify VIREED of the defect. The parties will then agree in a spirit of trust with regard to the pursuit of the customer's rights and claims.

4. If the customer asserts a claim against the supplier for the delivery of a new, defect-free item by way of supplementary performance, VIREED agrees that the previous item will be exchanged for the item to be delivered as a replacement by the supplier, provided that the item to be delivered as a replacement is not the same as the previous item subject is equivalent. The customer will agree with the supplier that the supplier will transfer ownership of the item and/or the right to use the software directly to VIREED. Possession occurs through delivery to the customer, who takes immediate possession. In the case of software to be delivered as a replacement, the customer will agree with the supplier that the latter will transfer the right to use the software to VIREED. The customer will inform VIREED about the planned replacement of the item and, after replacement, provide the designation, any registration numbers and other identifiers of the item or the software. The transfer agreement will continue unchanged with the item delivered as a replacement if the supplier is not entitled to compensation for use of the item to be returned or compensation for use is not demanded. If the supplier enforces a claim for compensation for use, the agreed payments will be increased by an amount to be paid in one sum that corresponds to the compensation for use. The customer's payment obligation is due after VIREED has issued the corresponding invoice. After payment, the customer can request that a fixed or imputed term of the rental contract be extended by a period that corresponds to the period for which the customer actually paid in installments until the item was replaced. Installments are not payable for the extension period. If only a part of the item that can be used independently was exchanged, the above applies accordingly to this part of the item. Instead of the extension, the customer can request a share of the net sales proceeds, to be determined by VIREED at its reasonable discretion, insofar as this has increased as a result of the exchange. If a share of the customer in the proceeds of the sale has been agreed, this must be taken into account when determining the amount to be credited to the customer.

5. If the customer has enforced his reduction, VIREED reduces the agreed payments according to the reduction in the acquisition costs.

6. If the customer has enforced a withdrawal and the legal consequences of the withdrawal from the respective procurement contract or compensation instead of the service, the mutual main performance obligations of VIREED and the customer from the transfer agreement no longer apply with the binding determination of the rights. The customer must then put VIREED in the position it would have been in without the conclusion of the transfer agreement and the resulting procurement. Agreed payments already made and amounts repaid by the supplier in connection with the reversal of the purchase price and/or the software license fee will be offset against the customer's obligations. Amounts received by VIREED from the supplier after the customer's payment obligation has been met will be reimbursed to the customer. Section 2, paragraph 2, last paragraph applies to the return of the item.

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§ 6 Use, maintenance and repair

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1. The customer will treat the subject matter of the contract with care, use it appropriately in compliance with the relevant legal provisions and follow the maintenance, care and usage recommendations provided by VIREED as well as user manuals and certificates from VIREED and/or the suppliers and manufacturers.

2. The customer must keep the subject matter of the contract in a proper and functional condition, carry out the necessary repair, maintenance and troubleshooting measures and, if necessary, procure spare parts. VIREED will support the customer in this and bears the costs incurred in this connection.

3. Restriction and omission of the usability of the subject of the contract - also due to legal regulations - do not affect the obligation to make the agreed payments. If maintenance, repairs or other measures to restore usability are not possible or not economically viable, the customer can instead request the cancellation of the transfer agreement, step by step in return for the surrender of the subject matter of the contract.  

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§ 7 Loss and damage

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1. The customer bears the risk of loss and total or partial damage to the subject matter of the contract. This also applies in the event of force majeure and in cases of transfer to third parties with the consent of VIREED. The customer will notify VIREED of the occurrence of such an event immediately after becoming aware of it.

2. In the event of loss and total damage, the contractual partners agree to cancel the transfer agreement. In such a case, the customer must reimburse VIREED for the current value of the subject matter of the contract.

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§ 8 Insurance and compensation payments

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1. The customer is obliged to insure the subject matter of the contract. The customer hereby assigns to VIREED, accepting this, claims from his insurance to VIREED to secure its claims from the transfer agreement.

2. The insurance must at least cover the risks of fire, burglary, mains water, storm and hail. In addition, the customer must maintain appropriate electronics insurance. The customer must provide VIREED with evidence of the existence of the insurance upon request.

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§ 9 Extraordinary Termination

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1. The transfer agreement can be terminated for important reasons in the sphere of the other contractual partner. In particular, VIREED can terminate the transfer agreement without notice for good cause if the customer

• is in arrears with the payment of two consecutive installments or

• is in arrears for more than two due dates with payments the amount of which corresponds to two installments or

• persistently violates his contractual obligations or

• The addressee of enforcement measures is or

• there is an application for the submission of an asset report (§ 807 ZPO) against the customer or the customer has submitted such an asset report.

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VIREED can also terminate the contract for good cause if insolvency proceedings have been opened against the customer's assets or the opening of insolvency proceedings has been rejected due to insufficient assets.

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1. Insofar as other regulations are not expressly agreed in the transfer agreement, the restriction and omission of the usability of the subject matter of the contract do not entitle the customer to terminate the contract. In such a case, the parties will come to an agreement based on trust and continue the transfer agreement after delivery of a new contractual item as a replacement. Reference is also made to the regulations in Sections 4 and 5 above.

2. The extraordinary termination of the contract by the customer is also excluded if VIREED objects to a transfer of use to third parties requested by the customer.

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§ 10 End of contract term

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1. Upon termination of the transfer agreement, for whatever reason, the customer will dismantle the subject matter of the contract, including the latest version of the software available to the customer as well as the maintenance, care and usage recommendations and user manuals provided by VIREED, at his own risk and expense and place it in the Deliver to VIREED's registered office in a condition that corresponds to the contractual use.

2. VIREED reserves the right to name a different location at its reasonable discretion if the utilization and a possible check of the condition of the subject matter of the contract is to take place at a different location. When making the selection, VIREED will take into account the legitimate interests of the customer. VIREED will reimburse the customer for any additional costs that arise as a result of specifying a different delivery location for the return of the subject matter of the contract.

3. If the customer has copies of contractual software, the customer will irrevocably destroy them and VIREED will confirm the deletion in writing.

4. VIREED will delete personal data stored on the subject matter of the contract completely and in accordance with data protection before returning/handing it over to VIREED. The customer undertakes to provide VIREED with the best possible support if necessary.

5. The customer hereby transfers to VIREED, subject to the condition precedent, all claims and rights that still exist at this point in time and that have been transferred to him in accordance with Section 2, Paragraph 2, as of the date of termination of the transfer agreement. This does not apply to claims that were enforced by the customer at the time of termination or are being pursued in court. If VIREED derives an advantage from the reassigned claims and rights, it will credit this to the customer.

6. If the subject matter of the contract is not returned on time, contrary to VIREED's will, the customer will be charged a basic amount of 1/30 of the monthly rate agreed for the contract period for each day exceeded and the costs caused by the return delay. We reserve the right to make further claims for damages due to late return. Otherwise, the customer's obligations under the transfer agreement continue to apply during this period.

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§ 11 General Provisions

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1. The agreed payments and all fees for VIREED services subject to VAT must be paid plus statutory sales tax (VAT). In the event of a change in sales tax law or the assessment of the respective legal situation by the tax authorities, fees for services or partial services affected by the change can also be subsequently adjusted accordingly (e.g. part of an agreed payment attributable to the remaining contract term or in the event a subsequent adjustment of agreed payments [ES1]   [DGS2]  ).

2. The customer may only offset undisputed or legally established claims or assert rights of retention or liens.

3. All incoming payments are settled according to the contract. Insofar as the customer is obliged to settle outstanding installments or other agreed payments from the transfer agreement as well as to pay damages, incoming payments will first be offset against the claim for damages and then against outstanding installments or other obligations.

4. VIREED and its vicarious agents are entitled to inspect or check the subject matter of the contract. VIREED can demand that the subject matter of the contract is marked as its property.

5. VIREED is only liable for damages for its own behavior

• if it has at least negligently violated essential contractual obligations,

• if it has at least negligently violated contractual obligations and this has resulted in damage to life, limb or health, or

• if it has intentionally or grossly negligently violated its other contractual obligations.

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The same applies to behavior by the legal representatives or vicarious agents of VIREED that causes damage. If VIREED is responsible for the behavior of third parties, it can demand that the customer assign the claims against the third party, which enable VIREED to take recourse against the third party. VIREED's liability under the Product Liability Act in its currently valid version remains unaffected by the exclusions of liability regulated in these General Terms and Conditions.

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1. Subsidiary agreements, changes or additions to the transfer agreement are made in writing.

2. The place of fulfillment is the registered office of VIREED.

3. The law of the Federal Republic of Germany applies, excluding the regulations of German international private law and the UN sales law.

4. The place of jurisdiction for all disputes arising from and in connection with the transfer agreement is - to the extent legally permissible - Hamburg.

5. In the event of contradictions or doubts, the provisions of the transfer agreement take precedence over these GTC.