Terms and Conditions of Business and Delivery
openthinclient gmbh
1. Scope
All products (hardware and software) offered by openthinclient are aimed exclusively at businesses, as are these terms and conditions.
(2) These General Terms and Conditions shall apply exclusively to all contracts between openthinclient gmbh, Heilbronner Str. 150, 70191 Stuttgart (hereinafter referred to as "openthinclient") and the customer, provided the customer is an entrepreneur within the meaning of § 14 of the German Civil Code (BGB).
(3) The customer's general terms and conditions shall only be recognised by openthinclient upon agreement in text form.
2. Conclusion of contract
The offers for individual services on the openthinclient website do not constitute a binding offer to enter into a contract. Contracts between openthinclient and the customer are only concluded in accordance with the following provisions:
a) Conclusion of a contract for the use of the openthinclient software
aa) Free use
(1) openthinclient shall provide the customer with the openthinclient software („Software“) for up to 24 clients free of charge. The free provision is voluntary and openthinclient may cease or amend it at any time with effect for the future. The customer shall have no entitlement to use it free of charge.
(2) In the case of free use, the customer is not entitled to support, bug fixing, updates, upgrades, or other maintenance services. openthinclient may provide such services voluntarily, without this establishing a future legal entitlement for the customer.
(3) The software provided free of charge is supplied to the customer „as is“ and „as available“. openthinclient provides no warranty that the software is error-free, will run without interruption, or is suitable for specific purposes.
(4) The customer bears sole responsibility for the installation, operation and operating environment of the software.
(5) The customer is responsible for the proper installation, securing and operation of the software. In particular, they must implement appropriate security measures (e.g. data backups, access protection).
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
If the customer wishes to use 25 or more clients, a separate written contract is required for this. The contract form will be sent to the customer by openthinclient upon request.
The costs for using the software arise from this agreement.
(3) The provisions in the contract form sent to the customer separately shall take precedence over the provisions of these T&Cs, provided that individual provisions should contradict each other.
(4) If the customer operates multiple sites where they use Thin Clients, these sites will be counted together for the relevant aforementioned number of Thin Clients.
b) Contract conclusion for hardware purchases
A purchase agreement for hardware is only concluded when, after the customer has placed an order via the openthinclient website, this order is confirmed by openthinclient via e-mail.
3. Delivery and Shipping
(1) Delivery is only while stocks last.
(2) Delivery times are shown on the respective product pages.
(3) In the event of customer change or amendment requests, the delivery time will be extended by the implementation period of the special requests.
(4) The costs for shipping and transport insurance shall be borne by the customer, with openthinclient having sole discretion over the choice of shipping route and method.
(5) The customer is obliged to inspect the goods immediately upon arrival and to report any recognisable or discovered transport damage, as well as any damage to the packaging, immediately and in writing.
(6) openthinclient is entitled to make partial deliveries and render partial services at any time.
4. Payment terms and prices
openthinclient will issue invoices to the customer for deliveries and services rendered. These are immediately due for payment.
(2) If the customer defaults on payment, openthinclient is entitled to withhold further deliveries and services.
(3) Unless otherwise stated, the prices quoted are net prices and are exclusive of VAT.
5. Retention of title
The goods supplied remain the property of openthinclient until full payment of all claims by openthinclient arising from the contract with the customer, both principal and ancillary.
(2) The customer shall adequately insure the goods subject to retention of title under their usual insurance cover (e.g. business or inventory insurance), insofar as this is economically reasonable. In the event of damage, the customer's insurance claim for goods subject to retention of title from openthinclient shall be deemed to have been assigned to openthinclient.
(3) In the event of distraint or seizure, the customer shall inform openthinclient immediately in text form and immediately inform third parties of openthinclient's retention of title in an appropriate manner. Should the customer nevertheless sell the delivery items and openthinclient should approve this, the customer hereby assigns all claims against their purchasers to openthinclient upon conclusion of the contract. The customer is obliged to provide openthinclient with all information required to assert these rights and to provide the necessary cooperation.
(4) Ownership of delivered goods shall only pass to the customer once the customer has settled all claims arising from the existing business relationship with openthinclient.
(5) The customer is revocably entitled to resell the reserved goods to a third party in the ordinary course of business subject to retention of title, but not to pledge or transfer them as security. The customer hereby assigns all claims that arise against third parties from the resale.
6. Limitation of Liability
(1) The following limitation of liability shall not apply in the event of injury to life, limb or health of the customer, or in the event of liability under the Product Liability Act.
(2) openthinclient shall not be liable for the functionality of the lines to servers, for power outages, and for outages of servers not within its sphere of influence.
(3) If openthinclient is liable for wilful or grossly negligent conduct, openthinclient shall be liable in accordance with the statutory provisions.
(4) To the extent that openthinclient is accused only of a negligent breach of contract, openthinclient shall be liable only for a breach of a material contractual obligation, the fulfilment of which the customer may regularly rely on (cardinal obligation). In such cases, liability shall be limited in amount to the foreseeable damage that is typical of the contract.
(5) Except as otherwise provided above, the liability of openthinclient is excluded. In particular, openthinclient shall not be liable for the loss of data of any kind if it is deleted due to external attacks (so-called hacker attacks), unless otherwise provided above. Likewise, openthinclient shall not be liable for damages incurred by the customer as a result of their personal or other data being obtained and misused through so-called hacker attacks by third parties, unless otherwise provided above.
7. Guarantee and Warranty
(1) openthinclient accepts no warranties in a legal sense unless explicitly designated as a „warranty“ in writing.
(2) The warranty period is one year from the customer's receipt of the goods and/or installation of the software.
(3) Should a defect occur within the warranty period, the customer is obliged to report it to openthinclient immediately in writing. Specific details regarding the defect that has occurred must be provided as part of this defect notification. Commercial obligations to inspect and report defects remain unaffected.
(4) If the goods are defective, the method of supplementary performance shall be determined in accordance with openthinclient.
(5) The warranty does not cover the rectification of defects arising from normal wear and tear, external influences, repairs and alterations by unauthorised third parties or incorrect operation, nor non-reproducible software errors for which openthinclient is not responsible.
(6) The warranty shall be void if the customer refuses to rectify defects or modifies devices, elements or accessories themselves or has them modified by third parties without the consent of openthinclient, unless the customer fully proves that the defects in question were not caused in whole or in part by such modifications and that the rectification of defects is not made more difficult by the modification.
(7) Within the scope of its warranty obligations, openthinclient may repair or replace defective devices, elements, accessories or parts. To the extent necessary for this, the customer shall remove programmes and components (including their application programmes, data, data carriers, modifications and add-ons) prior to the replacement.
8. Software
(1) The following provisions shall apply additionally to contracts for software:
(2) openthinclient makes considerable efforts, through regular quality assurance measures, support, and updates, to achieve the greatest possible freedom from defects in its software products. As is generally known, however, developing completely error-free software is practically impossible. The customer therefore only has a right to withdraw from the contract or request a reduction in price if a program error proves to be not merely insignificant and unessential for the overall contractual performance.
(3) Installation and software updates will be carried out by openthinclient upon customer request for a separate fee.
9. Set-off
Set-off against the purchase price claim is only possible for the customer with recognised or legally established counterclaims.
10. Miscellaneous
(1) No ancillary agreements have been made. Amendments to the contract shall only be effective if confirmed by openthinclient in text form.
The place of performance for the customer’s payments, and for deliveries and services by openthinclient, with the exception of any services to be rendered by openthinclient on-site at the customer’s premises, shall be Stuttgart.
The exclusive place of jurisdiction for all disputes shall be Stuttgart. German law shall apply.