General Terms and and delivery conditions of openthinclient gmbh

1. Scope of Application

(1) All products offered by openthinclient (hardware as well as software) are intended exclusively for entrepreneurs, as are these General Terms and Conditions.

(2) These General Terms and Conditions apply exclusively to all contracts concluded between openthinclient gmbh, Heilbronner Str. 150, 70191 Stuttgart (hereinafter referred to as “openthinclient”) and the customer, provided that the customer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB).

(3) General terms and conditions of the customer shall only be recognized by openthinclient if expressly agreed to in text form.

2. Conclusion of Contract

The offers for individual services on the openthinclient website do not constitute a binding offer to conclude a contract. Contracts between openthinclient and the customer are concluded only in accordance with the provisions set out below:

a) Conclusion of contract for the use of the openthinclient software
aa) Free use
(1) openthinclient provides the customer with the openthinclient software (“Software”) free of charge for up to 24 clients. The free provision is voluntary and may be discontinued or modified by openthinclient at any time with effect for the future. The customer has no entitlement to free use.

(2) In the case of free use, the customer has no claim to support, bug fixes, updates, upgrades, or other maintenance services. openthinclient may provide such services voluntarily without creating any future legal entitlement for the customer.

(3) The software provided free of charge is made available to the customer “as is” and “as available.” openthinclient gives no warranty that the software is error-free, operates without interruption, or is suitable for a specific purpose.

(4) The customer bears sole responsibility and risk for the installation, operation, and system environment of the software.

(5) The customer is responsible for the proper installation, backup, and operation of the software. In particular, the customer must implement appropriate security measures (e.g. data backups, access protection).

(6) openthinclient reserves the right to discontinue the provision of the free software at any time with reasonable notice (at least 14 days) or to replace it with a paid version. The customer shall have no claims arising from this.

bb) Paid use
(1) If the customer wishes to use 25 or more clients, a separate written contract must be concluded. The contract form will be provided to the customer upon request by openthinclient.

(2) The costs for using the software are set out in the respective contract.

(3) The provisions of the separately provided contract shall take precedence over these General Terms and Conditions in the event of any contradictions.

(4) If the customer operates multiple locations at which thin clients are used, all such clients shall be aggregated for the purpose of determining the relevant number of thin clients.

b) Conclusion of contract for the purchase of hardware

A purchase contract for hardware is concluded only when openthinclient confirms the customer’s order placed via the openthinclient website by email.

3. Delivery and Shipping

(1) Delivery is subject to product availability.

(2) Delivery times are stated on the respective product pages.

(3) In the event of change or customization requests by the customer, the delivery time shall be extended by the duration required to implement such requests.

(4) Shipping and transport insurance costs shall be borne by the customer. The choice of shipping method and carrier is at the sole discretion of openthinclient.

(5) The customer is obliged to inspect the goods immediately upon receipt and to notify openthinclient without delay and in text form of any visible or discovered transport damage or any damage to the packaging.

(6) openthinclient is entitled at any time to make partial deliveries and provide partial services.

4. Payment Terms and Prices

(1) openthinclient shall issue invoices to the customer for the deliveries and services provided. Invoices are due for payment immediately.

(2) If the customer is in default of payment, openthinclient is entitled to withhold further deliveries and services.

(3) Unless stated otherwise, all prices quoted are net prices and are subject to the applicable statutory value-added tax (VAT).

5. Retention of Title

(1) The delivered goods remain the property of openthinclient until all claims arising from the contract with the customer, including ancillary claims, have been paid in full.

(2) The customer shall adequately insure goods subject to retention of title under its usual insurance coverage (e.g. business or inventory insurance), insofar as this is economically reasonable. In the event of damage, the customer’s insurance claim relating to goods subject to retention of title shall be deemed assigned to openthinclient.

(3) In the event of seizure or attachment, the customer shall inform openthinclient immediately in text form and shall promptly notify third parties of openthinclient’s retention of title. If the customer sells the goods with openthinclient’s consent, the customer hereby assigns to openthinclient all claims against its purchasers upon conclusion of the contract. The customer is obliged to provide all information and assistance required to enforce these rights.

(4) Ownership of the delivered goods shall pass to the customer only after all claims arising from the existing business relationship with openthinclient have been fully settled.

(5) The customer is revocably entitled to resell the reserved goods in the ordinary course of business subject to retention of title, but not to pledge them or assign them as security. The customer hereby assigns in advance all claims arising from such resale against third parties.

6. Limitation of Liability

(1) The following limitation of liability does not apply in the event of injury to life, body, or health, or in cases of liability under the German Product Liability Act.

(2) openthinclient is not liable for the functionality of network connections to servers, power outages, or server failures outside its sphere of influence.

(3) In cases of intent or gross negligence, openthinclient shall be liable in accordance with statutory provisions.

(4) In cases of simple negligence, openthinclient shall only be liable for breach of a material contractual obligation (cardinal obligation) on which the customer may regularly rely. In such cases, liability is limited to the foreseeable damage typical for the contract.

(5) Except as otherwise provided above, liability of openthinclient is excluded. In particular, openthinclient is not liable for loss of data of any kind caused by external attacks (so-called hacker attacks), nor for damages resulting from misuse of personal or other data obtained by third parties through such attacks, unless otherwise required by the above provisions.

7. Warranty and Guarantee

(1) openthinclient does not provide guarantees in the legal sense unless expressly designated as a “guarantee” in text form.

(2) The warranty period is one year from receipt of the goods and/or installation of the software at the customer’s premises.

(3) If a defect occurs within the warranty period, the customer must notify openthinclient immediately in text form, providing specific details of the defect. Statutory commercial duties to inspect and give notice of defects remain unaffected.

(4) If the goods are defective, the method of subsequent performance shall be determined by openthinclient.

(5) The warranty does not cover defects caused by normal wear and tear, external influences, repairs or modifications by unauthorized third parties, operating errors, or non-reproducible software errors not attributable to openthinclient.

(6) The warranty shall lapse if the customer refuses subsequent performance or modifies devices, components, or accessories without openthinclient’s consent, unless the customer proves that the defect was not caused by such modifications and that remedy of the defect is not impeded.

(7) Within the scope of its warranty obligations, openthinclient may repair or replace defective devices, components, accessories, or parts. To the extent required, the customer shall remove programs and components (including applications, data, data carriers, modifications, and extensions) prior to replacement.

8. Software

(1) The following provisions apply additionally to software contracts.

(2) openthinclient undertakes significant efforts through regular quality assurance measures, support, and updates to achieve the highest possible freedom from defects in its software products. However, as generally known, completely error-free software cannot be guaranteed. The customer shall therefore only be entitled to withdrawal or price reduction if a software defect is not merely insignificant in the overall contractual performance.

(3) Installation and updates of the software may be performed by openthinclient at the customer’s request for a separate fee.

9. Set-Off

Set-off against the purchase price claim is only permissible with claims that are undisputed or have been legally established by a final court decision.

10. Miscellaneous

(1) No side agreements exist. Amendments or supplements to the contract shall only be effective if confirmed by openthinclient in text form.

(2) The place of performance for payments by the customer and for deliveries and services by openthinclient, except for services agreed to be performed at the customer’s premises, is Stuttgart.

(3) Exclusive place of jurisdiction for all disputes is Stuttgart. German law shall apply.