General Terms and Conditions & Cancellation Policy of Xircuit GmbH & Co KG
§ 1 Scope of Application
- The following General Terms and Conditions apply to all business relations of Xircuit GmbH & Co KG, Bergstrang 105, 49479 Ibbenbüren, Germany (hereinafter referred to as “Supplier“) and their contractual partners (hereinafter referred to as “User“).
- Modifications to these terms and conditions undertaken by the Supplier will be communicated to the Supplier in writing. They will be deemed approved unless the User makes a written objection. The User shall transmit the objection to the Supplier within two weeks from the notification of the modifications.
- The General Business Terms of the User can only form part of this contract if the Supplier has expressly consented to their validity in writing prior to or on conclusion of the contract and if this protected clause is repealed in writing prior to or on conclusion of the contract.
- The acceptance of the Supplier’s performance is deemed to constitute an acknowledgement of these General Business Terms if the Supplier has clearly referred to its General Business Terms and the User does not expressly contradict their applicability.
§ 2 Conclusion of Contract, Scope, Prices, Termination
- Offers made by the Supplier are non-binding unless stipulated otherwise in the offer. The current price list is applicable. The Supplier reserves the right to make amendments, even during the contractual period,
- The User agrees that its invoice is transmitted electronically (by e-mail). It is valid without signature.
- The Supplier is entitled to modify the prices at the beginning of the subsequent contractual period within an appropriate notice period of at least 20 days. If the customer does not object to the amendment within an appropriate time limit set by the Supplier, the modification is deemed to have been approved. In the amendment communication, the Supplier must let the customer know that the modification will take effect if the latter does not object to it. If the User objects to the modification, the contract is to be terminated at the earliest date possible.
- The contract only takes effect on confirmation of the order in writing, by teleprint, by electronic transmission or on the execution of the order by the Supplier.
- The Supplier is entitled to have services performed also by third parties.
- The Supplier may perform partial performance if the parts supplied are of genuine use for the User.
- The Supplier reserves the right to extend or improve services. Amendments may imply that the appearance of XIRCUIT websites, apps and bots are modified. The Supplier shall only perform these modifications if they are reasonable for the User or if the Supplier is obliged to perform them due to legal requirements.
- Voluntary, free services and performances of the Supplier may be discontinued at any time. In this case the User is not entitled to any continuation of the service in question.
- The Supplier is not committed to any further development.
- Product specifications, presentations and test programs do not constitute any warranties or representations. Such require the express declaration of the Supplier.
- Contractual object is the current software version at the time of the conclusion of the contract.
- Insofar as not otherwise stated in the respective performance specification and if the contract is not terminated until at least 20 days before the respective contractual period ends, the contract term is automatically extended by the period previously agreed upon.
- The Supplier is entitled to terminate the contractual relationship unilaterally upon three months’ notice without providing any reasons. Any fees paid proportionally in advance will be reimbursed in this case. Upon receiving knowledge of any breach of obligations on the part of the User, the contract may be terminated without notice. In accordance with civil or criminal law, such violation of non-observance may entail further consequences for the User. Any fees paid proportionally in advance will not be reimbursed in this case.
- The Supplier is further entitled to deactivate the User’s website, app or bot and to block the XIRCUIT access if fees are not paid. In this case, the Supplier is also entitled to have the User’s domain deleted by the relevant allocating organization (CLOSE). By accepting the present General Business Terms, the User gives explicit authorisation to the Supplier to enforce such termination declaration.
- The termination of additional fee-based options remains unaffected by the contractual relationship.
- After termination of the contractual relationship, the Supplier is no longer obliged to fulfil any contractual services. It is entitled to delete any User data stored on the server including e-mails stored in mailboxes. The app set up by the User will be removed from the respective app stores and cease to function on any existing devices.
- It is not possible to transfer the website, app and bot to a third-party server. The User is therefore responsible for timely storage and backup of respective data in the event of termination. Restoration of the data is not possible.
- Additionally, after the termination of the contract the Supplier is entitled to have the User’s domains deleted by the relevant allocating organisation in case they were not transferred to a new provider (CLOSE).
- Should the User object to a modification of the General Business Terms in accordance with § 1, Item 2, then this will result in the termination of the contract on the part of the Supplier at the earliest possible date.
§ 3 Protected Rights and Safeguarding Measures
- All rights to deliveries and services, in particular to software, documentation, databases etc. are reserved unless explicitly transferred. Reproduction, distribution, adaptation or any other utilisation is granted to the User only by individual agreement in writing.
- The Supplier grants a simple right of usage to the User for programs, applications, scripts and apps made available, which is limited to the respective term of the contractual relationship. The right of usage only includes the scope typical for a contract.
- The User undertakes to desist from all activities that could lead to impairment of the rights of the Supplier. He ensures that any infringement or access by unauthorised third parties is foreclosed.
- The User undertakes to protect the contractual software and, if applicable, the respective online access data from any unauthorised third-party access by implementing safeguard measures. It is not permitted to grant third parties any rights of usage. In particular, a sale is therefore not allowed.
- The User undertakes to meet the limitations of the right of usage agreed upon.
- The User undertakes to maintain any trade marks contained in unchanged form.
§ 4 Liability and default in performance
- The Supplier is liable without limitation for deficiency of assured or guaranteed essential properties. It is referred to § 2, sub-para. 6 of these General Business Terms.
- A strict liability on part of the Supplier for deficiencies already in existence on conclusion of this contract in accordance with § 536a BGB (German Civil Code) is explicitly excluded.
- No liability is accepted for damages incurred as a result of changes to the software without the consent of the Supplier.
- The Supplier is not liable for external contents or software modifications induced by unauthorised third parties.
- Furthermore, the Supplier is liable without limitation only for intent and gross negligence also of its legal representatives and executive staff.
- In case of liability of other vicarious agents, the Supplier’s liability is limited with regard to reason and amount to typical and foreseeable damages based on the performance of the contractual agreement.
- The Supplier is only liable for slight negligence insofar as an obligation is breached, the fulfilment of which is essential for the proper execution of the contract, and the breach of which is endangering both the achievement of the purpose of this contract and the User’s trust in its compliance. The Supplier is not liable for unforeseeable, atypical damages.
- In the event of defects in title the Supplier indemnifies the customer against any claims for damages of third parties. In the case of slight negligence the Supplier is not liable for compensation for any additional damages.
- The Supplier is not responsible for performance delays in the event of force majeure, labour dispute action, governmental acts, unpredictable failure of means of transport or energy and other unavoidable occurrences, also if these circumstances occur at one of the Supplier’s service providers. The obligation to perform does not apply if one of these occurrences leads to an impossibility of performance, for which the Supplier is not responsible
- The preceding provisions also apply for claims in accordance with § 284 BGB (German Civil Code) for the refund of futile expenses.
- Liability provisions under the Product Liability Act and for damages arising from injury to life, body or health remain unaffected by these liability rules.
- Further liability of the Supplier does not exist.
- The User indemnifies the Supplier against all claims by third parties if the User’s behaviour is in violation of the rights of third parties.
- The Supplier is not liable for any data loss of Users or for the unauthorised access by third parties (e.g. by hackers) to any personal data of service users.
- The Supplier will not be liable in the event that specifications and information made accessible to third parties by users themselves are used in an abusive way by these third parties.
- The Supplier does not assume liability for loss of turnover (e.g. lost profits) or other damages resulting from malfunctioning or non-availability, as far as legally permissible.
- The Supplier undertakes to ensure continuous availability and fault-free functionality. However, the User acknowledges that already for technical reasons and due to external influences, e.g. within the scope of telecommunication networks, an uninterrupted availability of the Xircuit-websites, apps and bots is technically not possible and therefore the User cannot claim an entitlement to permanent accessibility.
- The availability of Xircuit servers and data paths up to the Internet handover point achieves at least 97% in the annual mean. This does not include times during which the corresponding servers cannot be reached due to technical or other problems that are outside of the control of the Supplier (force majeure, fault of third parties, etc.).
- Temporary access restrictions grant neither implied warranty claims nor the right for extraordinary termination. The Supplier regularly conducts maintenance works on all its systems to ensure the safety of network operations, to uphold the integrity of the network and to guarantee interoperability of services and data protection. For this purpose, services may be temporarily suspended or restricted with due regard to the interests of the customer where this is justified by objective reasons. As far as possible, the Supplier will perform these maintenance works during low-use periods.
- Should longer periods of interruption or restriction be necessary, the Supplier shall notify the users about the nature, extent and duration of the impairment to the extent that this is objectively possible under the circumstances and such notification would not delay the repair to any existing interruption of service.
- Insofar as permitted by law, the Supplier assumes no liability for the services of third parties for the Supplier.
- Xircuit-generated native apps are created for the user-selected app stores by the Supplier. The decision to include the native app in the respective app store is taken by the app store provider in its own responsibility. This decision is outside the Supplier’s control. On submission to the respective app store, the native app is subject to the applicable conditions of that app store. These are available for inspection at the respective app store.
- To ensure the proper functioning of Xircuit’s administration and the operation of websites created by Xircuit, only minor system requirements are necessary. An overview of the current prerequisites can be found here [Link]. The Supplier is not responsible for disruptions of performance should other system configurations be used.
§ 5 Assignment, Offsetting, Right of Retention
- Claims against the Supplier are not assignable.
- No offsetting is permitted unless against uncontested claims that are or have been legally established.
- The assertion of a right of retention by the User is excluded insofar as it is similar in effect to an offsetting and does not comply with §, sub-para. 5 (2) of these General Business Terms.
§ 6 Intellectual and Industrial Property Rights, Confidentiality
- All information, data, images, source codes, documentation etc. supplied by the Supplier to the User remain the property of the Supplier and may not be copied by the User nor be disclosed to any third party and only be used for the agreed purposes .
- Software specifications, instructions for use etc. may only be printed, copied or reproduced for own use. Publication is not allowed.
§ 7 Commercial obligation of examination and notification of defects
- The implied warranty rights of the User pre-assume that the latter has duly complied with its written examination obligations in accordance with § 377 HGB (German Commercial Code). For obvious defects, a term of four weeks after detection of the defect applies.
- Insofar as the reprimand duty is not complied with, the goods will be regarded as approved, also in respect of the defect.
§ 8 Confidentiality and Data Protection
- The Supplier collects, processes and makes use of the Users’ personal data. Further information concerning data processing and data protection are set forth in the Supplier’s privacy declaration which you can find here XXX
- Any information concerning the other contract party or any awareness of other objects received in the execution of the contract are to be kept confidential unless there are legal reasons which require disclosure or the Supplier has acquired knowledge of potentially unlawful content or these have become publicly known without breach of this confidentiality obligation.
- The User assures that the content used by the latter is free of any rights of third parties, and, should the contents be encumbered with rights of third parties, that such third party has fully consented to its use.
- The confidentiality obligation remains in effect also after the termination of the business relationship for an unlimited period of time.
§ 9 Limitation Period
- For entrepreneurs, legal entities under public law or special assets organised under public law the implied warranty period is one year unless the law provides for shorter terms of limitation. The statutory beginning of the limitation period applies. §479 BGB (German Civil Code) remains unaffected.
- For consumers the legal provisions apply.
- For damages and reimbursement claims arising from wilful acts, gross negligence, warranty, injury of life, body and health and claims under the Product Liability Act, the statutory terms of limitation periods apply at all times.
- All further claims by the User for damages or reimbursement of futile expenses are time-barred within two years from the time the User has obtained knowledge of the circumstances on which the claim is based or had to become aware of without gross negligence.
§ 10 Revocation Instruction
Beginning of the Revocation Instruction
Right of Revocation
You have the right to withdraw from this contract within 14 days without specifying reasons. The revocation period is 14 days from the day the contract was concluded. In order to exercise your withdrawal right you must inform us of your decision to withdraw from this contract (enter our name, postal address and, if available, telephone number, fax number and e-mail address) by means of a clear statement (e.g. a letter sent by post, telefax or e-mail). You may use the attached model withdrawal form or fill out electronically any other clear form of statement, also on our website [enter internet address] and transmit it. If you make use of the last-mentioned possibility, we will immediately send you (e.g. by e-mail) a confirmation of the receipt of such revocation.
Transmitting the communication concerning the exercise of the right of withdrawal before the expiry of the period of revocation will be deemed sufficient for compliance with the revocation term.
Consequences of Revocation
If you cancel this contract, we will reimburse immediately all payments received from you within 14 days from receiving your notification of cancellation, including delivery costs (with the exception of additional costs that arose because you opted for a form of delivery that was different from the most cost-effective standard delivery that we offered). For this reimbursement we will use the same form of payment that you used for your initial transaction, unless explicitly agreed with you otherwise. In no case will we charge you any fees for this reimbursement.
In case you asked that the services should begin during the term of revocation, you must pay us a reasonable amount equivalent to the share of the services already provided to you from the date you informed us of your wish to exercise the right to withdraw from this contract, and in comparison with the full coverage of services set down in this contract.
End of the Information regarding Revocation
§ 11 Final Provisions
- Verbal ancillary agreements are deemed not to exist.
- Any amendments or supplements to these General Business Terms are to be made in writing. In addition, this also applies to any abrogation of this written form clause.
- If any provisions of this contract should be or become ineffective or impracticable, the validity of the remaining provisions of this contract will not be affected thereby. The ineffective or unenforceable provision is to be replaced by an arrangement that conforms as far as possible to the economic purpose intended. This applies mutatis mutandis in the event of any gap in this contract or any ineffective performance measure.
- Insofar as legally permissible, German substantive and procedural law applies to the contracts between the Supplier and the User under exclusion of the conflict-of-law standards of private international law and UN Sales Convention (CISG).
- Place of fulfilment is the corporate location of Xircuit GmbH & Co KG.
- Insofar as the User is a merchant, a legal entity or a special asset under public law, the exclusive place of jurisdiction for all disputes in connection with the order, including such from documentary deeds, drafts and cheques, is the domicile of Xircuit GmbH & Co KG. The same applies if the User does not have a place of general jurisdiction within the domestic territory, has transferred its domicile or usual place of residence to a location abroad after the conclusion of this contract or if its domicile or usual place of residence is unknown at the commencement of proceedings. The Supplier is also entitled to sue the User at its general court of jurisdiction.