General Terms and and delivery conditions of openthinclient gmbh

1. scope

All products offered by openthinclient (hardware as well as software) are exclusively addressed to entrepreneurs.

For all contracts between openthinclient gmbh, Heilbronner Str. 150, 70191 Stuttgart, Germany (hereinafter referred to as openthinclient) and the customer, provided that the customer is an entrepreneur as defined by § 14 BGB (German Civil Code), these General Terms and Conditions shall apply exclusively.

General terms and conditions of the customer shall only be accepted by openthinclient upon written consent thereto.

2. conclusion of contract

The offers of the individual services on the website of openthinclient do not constitute a binding offer to conclude a contract. Contracts between openthinclient and the customer shall only be concluded in accordance with the following provisions:

a) Conclusion of a contract for the use of the openthinclient software

A contract between openthinclient and the customer, which is subject to a charge for the customer, shall only come into existence if the customer uses more than 24 clients and only after both parties (customer and openthinclient) have signed the contract form sent separately to the customer by openthinclient. The provisions in the contract form sent separately to the customer shall take precedence over the provisions of these GTC if individual provisions should contradict each other. If the customer maintains several locations at which he uses ThinClients, these shall count together for the relevant aforementioned number of ThinClients.

b) Conclusion of contract for the purchase of Hardware

A contract for the purchase of Hardware shall only be concluded if the customer confirms his order by e-mail after having placed his order on the website of openthinclient
confirms his order by e-mail.

3. delivery and shipment

Delivery only while stocks last. The delivery times can be found on the respective product pages. In the event of changes or additions requested by the customer, the delivery time shall be extended by the implementation period of the special requests. The costs for shipping and transport insurance shall be borne by the customer, whereby the choice of the shipping route and the shipping method shall be at the discretion of openthinclient. The customer shall be obliged to inspect the goods immediately upon arrival and to immediately notify openthinclient in writing of any visible or discovered transport damage as well as any damage to the packaging. openthinclient shall be entitled to make partial deliveries and partial performance at any time.

4. terms of payment and prices

openthinclient shall issue invoices to the customer for the respective deliveries and services provided. These shall be due for payment immediately. If the customer is in default of payment, openthinclient shall be entitled to withhold further deliveries and services. Unless otherwise stated, the prices indicated are net prices, which are subject to the applicable value added tax.

5. retention of title

The delivered goods shall remain the property of openthinclient until full payment of all claims of openthinclient arising from the contract with the customer in the main and in the secondary matter.

The customer shall be obliged to properly insure the items subject to openthinclient’s retention of title (i.e. theft, fire, water and low-voltage insurance) and to provide openthinclient with evidence of such insurance upon request. In the event of damage, the customer’s insurance claim for items subject to retention of title by openthinclient shall be deemed assigned to openthinclient.

In the event of seizures or confiscations, the customer shall immediately notify openthinclient in writing and shall immediately inform third parties of openthinclient’s retention of title in a suitable manner. In the event that the customer nevertheless sells the delivered items and openthinclient should approve this, the customer shall assign to openthinclient all claims against its customers upon conclusion of the contract. The customer shall be obligated to provide openthinclient with all information required to assert these rights and to perform the necessary acts of cooperation.

Title to delivered goods shall not pass to the customer until the customer has settled all claims arising from the existing business relationship with openthinclient. The customer is revocably entitled to resell the goods subject to retention of title in the ordinary course of business, but not to pledge or assign them as security. The customer hereby assigns all claims accruing to it against third parties from the resale.

6. limitation of liability

The following limitation of liability shall not apply in case of injury to life, body or health of the customer or in case of liability according to the Product Liability Act.

openthinclient shall not be liable for the operability of the services to the server, in case of power failures and in case of failures of servers which are not within its sphere of influence.

If openthinclient is accused of intentional or grossly negligent fault, openthinclient shall be liable in accordance with the statutory provisions.

To the extent that openthinclient is only charged with a negligent breach of contract, openthinclient shall only be liable in the event of a breach of a material contractual obligation, the observance of which the customer may regularly rely on (cardinal obligation). In this case, the liability is limited to the amount of the foreseeable, contract-typical damage.

Unless otherwise provided above, openthinclient’s liability shall be excluded. In particular, openthinclient shall not be liable for the loss of data of any kind whatsoever if such data is deleted by external attacks (so-called hacker attacks), unless otherwise provided for in the foregoing. Likewise, openthinclient shall not be liable for damages incurred by the customer as a result of its personal or other data being obtained and misused by third parties through so-called hacker attacks, unless otherwise provided for in the foregoing.

7. warranty and guarantee

The customer shall not receive any warranties in the legal sense from openthinclient, unless agreed upon in writing.

The warranty period shall be one year from receipt of the goods by the customer.

If a defect occurs within the warranty period, the customer is obligated to immediately notify openthinclient thereof in writing. Within the scope of the written notice of defect, specific information regarding the defect that has occurred must be provided. Commercial duties of examination and notification of defects remain unaffected.

If the goods are defective, the type of subsequent performance shall be as determined by openthinclient.

The warranty does not include the elimination of defects caused by normal wear and tear, external influences, repairs and modifications by unauthorized third parties or operating errors as well as non-reproducible software errors for which openthinclient is not responsible.

The warranty shall not apply to the extent that the customer refuses subsequent improvements or modifies devices, elements or additional equipment itself or has them modified by third parties without the consent of openthinclient, unless the customer provides full evidence that the defects still in question were not caused by such modifications, either in whole or in part, and that the rectification of defects is not impeded by the modification.

Within the scope of its warranty obligations, openthinclient may repair or replace defective devices, elements, additional equipment or parts. To the extent necessary for this purpose, the customer shall remove programs and components (including its application programs, data, data carriers, modifications and attachments) prior to replacement.

8. Software

The following provisions shall apply in addition to contracts for software:

openthinclient maintains considerable efforts through regular quality assurance measures, support and updates to achieve the greatest possible freedom from defects of the software products. As is generally known, it is nevertheless almost impossible to develop software that is completely free of defects. Therefore, the customer only has the right to withdraw from the contract or reduce the purchase price if a program error should prove to be not only insignificant and immaterial for the overall contractual performance.

The installation and updates of the software shall be taken over by openthinclient upon the customer’s request for a separate charge.

9. offsetting

The customer shall only be entitled to offset the purchase price claim against counterclaims that have been acknowledged or have become res judicata.

10. miscellaneous

Subsidiary agreements have not been made. Any amendments to the contract shall only be effective if confirmed by openthinclient in writing.

The place of performance for payments by the customer as well as for deliveries and services by openthinclient, with the exception of any services to be provided by openthinclient on the customer’s premises as agreed, shall be Stuttgart.

The exclusive place of jurisdiction for all disputes shall be Stuttgart. German law shall apply.