1 General provisions and initial setup
1.1 These GTC apply to the free provision of the GFOXX App. By registering
in accordance with Section 2, the user acknowledges the GTC valid at that time.
The GTC can be called up at any time in the currently valid version via the
menu item "Terms of Use" in the settings of the app.1.2 These GTC
apply exclusively. Deviating, conflicting or supplementary general terms and
conditions of the user shall only become part of the contract if and to the
extent that the provider has expressly agreed to their validity. The consent
requirement also applies if the provider carries out the services without
reservation in knowledge of the general terms and conditions of the user.1.3
The contract language is german. If translations into languages other than
german are made of these GTC or other contract-related declarations and
documents ("reading versions"), only the German version is
binding.1.4 The app can be accessed at any time without registration via the
App Stores of Google and Apple. In order to use the functionalities offered by
the provider via the app, the initial setup of the GFOOX Temp Monitoring Device
(hereinafter: "Device") is required. The steps set out in the User's
Manual (available online at polarfoxx.com/benutzerhandbuecher) apply.
2 Object of performance of the app
2.1 The main obligation of the provider is the provision of the app. This
enables users to monitor the data collected by a device and generate reports. A
prerequisite for proper operation is that the connected device is installed
properly and in accordance with the instructions stored in the user manual, put
into operation and maintained.2.2 The provider provides the app in the same way
as it was during the initial setup in accordance with para. 1.4 and the service
description valid at that time was available ("as is"). In all other
respects, the user has no claim to a specific design or equipment of the app.
The provider reserves the right to change the app in whole or in part at its
own reasonable discretion, taking into account the interests of the user, or to
discontinue it permanently or temporarily, provided that this does not impair
essential contractual obligations of the provider and this is reasonable for
the user. Furthermore, the provider reserves the right to change or extend the
content and structure of the app as well as the associated user interface,
provided that this does not or not significantly impair the fulfilment of the
purpose of the contract concluded with the user.
3 Rights of use, decompilation
3.1 The customer receives a simple, non-exclusive, spatially and temporally
unlimited right of use to the app. The publication or making available of the
underlying source code is not owed. Any use of the app that goes beyond the
provisions in these GTC requires our written consent.3.2 The user is not
permitted to change, adapt, translate or create edits of the app. 3.3 A user
may not sell, give away or lend, rent or lease the app and the rights granted
to him for use to third parties without the prior consent of the provider.
Excluded from this is the case that the User transfers all his rights to use
the App to another natural or legal person, provided that: (1) the User (i)
transfers these GTC and (ii) the App and the devices connected to the App,
including all copies, updates and previous versions, to this natural or legal
person, (2) the user does not retain any
copies, including backup copies and other copies stored on a terminal device,
and (3) the acquirer accepts the provisions of these GTC as well as other
provisions according to which the user has acquired a valid right of use.3.4
The user is not permitted to remove or circumvent the existing protection
mechanisms of the app against unauthorized use,
unless this is necessary to achieve trouble-free use. Copyright notices
and other features used for software identification may also not be removed or
changed. 3.5 The User may not reverse engineer, decompile or disassemble the
App or otherwise attempt to determine the source code of the App, except to the
extent that the User may reverse engineer or decompile the App in accordance
with applicable law.
4 Contents and obligations of the users
4.1 The user is entitled and obliged to use the app exclusively for his own
purposes. The user must ensure that the values determined by the app are
regularly checked manually, i.e. using their own measuring device, for their
correctness. In addition, he must ensure that the device functions properly
during operation and is supplied with power.4.2 The user is obliged to notify
the provider immediately by e-mail of defects in the app or any functional
restrictions that occur after their discovery. In the case of material defects,
this is done with a description of the time of occurrence of the defects and
the more detailed circumstances.4.3 The commissioning of the app and the device
must be carried out exclusively by expert personnel. Before commissioning, the
user must ensure that the technical requirements described in the user manual
for the proper operation of the app are created and continuously maintained.
This applies in particular with regard to the output of HACCP-compliant reports
to print media. 4.4 Each user must observe the applicable law and protect the
rights of third parties. In particular, users are prohibited from using
mechanisms, software and/or scripts that go beyond the functionalities and
interfaces provided on the app by the provider, in particular if this blocks,
modifies, copies and/or overwrites the provider's services and these services
are necessary for the contractual use of the app.4.5 The provider is only
obliged to create backups if if this is
part of the services to be provided to the user according to the service
description.
5 Updates
5.1 It is at the discretion of the Provider to develop updates for the App
and to make them available to the User. Unless otherwise agreed in the event of
the provision, the provision shall be made available without remuneration. 5.2
Technically, the operation of an update, even if it is able to run
independently, requires a previously lawfully acquired version of the app for
which the update appears.5.3 With the installation of an independently
executable update of the app, the user loses the right to continue using the
old version of the app.
6 Warranty
6.1 If the user is an entrepreneur within the meaning of § 14 BGB (German
Civil Code), he must check the app immediately after commissioning for obvious
defects and inform the provider immediately if they exist, otherwise a warranty
for these defects is excluded. The same applies if such a defect becomes
apparent later. § 377 HGB applies.6.2 If the user is an entrepreneur, the
provider is initially entitled to subsequent performance in the event of a
material defect, i.e. at his own discretion to remedy the defect
("rectification") or replacement delivery. As part of the replacement
delivery, the user may adopt a new version of the app (e.B. by update, bug fix,
etc.), unless this leads to unreasonable impairments. 6.3 The Provider shall
also fulfil its obligation to remedy the defect by providing updates provided
with an automatic installation routine for download and by offering the User
telephone support to solve any installation problems that may arise.6.4 With
the exception of claims for damages, warranty claims due to material defects
shall become statute-barred in two years or in one year if the User is an
entrepreneur. The statute of limitations begins commissioning of the app.
7 Liability
7.1 The provider warrants the agreed quality of the app in accordance with
the statutory provisions, unless otherwise specified. Unless otherwise stated
in these GTC, the provider is only liable for intent and gross negligence. This
applies accordingly to legal representatives and vicarious agents, including
subcontractors.7.2 The provider does not guarantee and does not give any
assurance or guarantee that the values determined by the app are correct.
However, if there are discrepancies between the measured values determined by
means of the app and the actual measured values, we recommend that our users
contact us and inform us of this so that we can further improve our app.7.3 For
damages caused intentionally or through gross negligence by the app, the
provider or its legal representatives, executive employees or simple vicarious
agents, 7.4 In cases of slightly
negligent breach of only insignificant contractual obligations, the provider is
not liable. In all other respects, the liability of the provider for damages
caused by slight negligence is limited to those damages to which the occurrence
of which must typically be expected within the framework of the respective
contractual relationship (contractually foreseeable damages). 7.5 The above
limitation of liability does not apply in the event of malice or to claims
arising from product liability.
8 Final provisions
8.1 The law of the Federal Republic of Germany shall apply to the exclusion
of the UN Convention on Contracts for the International Sale of Goods and the
conflict of laws provisions; Art. 3 EGBGB remains unaffected. 8.2 Verbal
ancillary agreements have not been made. Changes and additions to these GTC as
well as all declarations of the parties relating to membership must be made in
text form. This also applies to the cancellation of the formal requirement.8.3
For entrepreneurs, the place of jurisdiction is the registered office of the
provider.8.4 Obligation to provide information in accordance with § 36 VSBG:
The provider is not willing and not obliged to participate in a dispute
resolution procedure of a consumer arbitration board.
General Terms and Conditions
(B2B) of PolarFoxx.com GmbH hereinafter referred to as "Provider".
The following General Terms and Conditions apply to
all contracts, deliveries or other services including consulting services that
you conclude as a (business) customer (B2B) with us as a provider
(PolarFoxx.com GmbH). In addition to the General Terms and Conditions, the
corresponding terms and conditions of the individual types of services that are
purchased also apply. In particular, but not exclusively, these may be the sale
of hardware, the provision of apps, services and the maintenance of the apps of
PolarFoxx.com GmbH.
1 Remuneration, payment, ancillary copyright, dates
1.1 Unless otherwise agreed, the remuneration shall be charged at the
provider's generally valid prices at the time of conclusion of the contract.
Remuneration is generally net prices plus statutory value added tax. 1.2 The
provider can bill monthly or by delivery. If services are remunerated according
to expenditure, the provider documents the type and duration of the activities
and transmits this documentation with the invoice.1.3 If services are provided
by personnel deployment on site, a distance-dependent travel fee will be
charged. If overnight stays are required for organizational or legal reasons to
provide the services, an overnight flat rate will be charged. 1.4 All invoices
are to be paid without deduction no later than 14 calendar days after receipt
free paying agent. 1.5 The customer may only offset or withhold payments due to
defects if he is actually entitled to payment claims due to material or legal
defects of the service. Due to other claims for defects, the customer may only
withhold payments to a proportionate extent taking into account the defect.
Clause 4.1 shall apply accordingly. The customer has no right of retention if
his claim for a defect is time-barred. In all other respects, the customer may
only offset undisputed or legally established claims or exercise retention. 1.6
The provider reserves the title and rights to be granted to the services until
full payment of the owed remuneration, justified retention of defects in
accordance with section 1.5 sentence 2 will be taken into account. Furthermore,
the provider reserves the right of ownership until all his claims arising from
the business relationship with the customer have been fulfilled. 1.7 The
provider is entitled to prohibit the customer from further use of the services
for the duration of a delay in payment by the customer. The provider can only
assert this right for a reasonable period of time, usually for a maximum of 6
months. This does not constitute a withdrawal from the contract. § 449 Abs. 2
BGB remains unaffected. 1.8 If the customer or his customers return the
services, the acceptance of the services does not constitute a withdrawal from
the provider, unless he has expressly declared the withdrawal. The same applies
to the seizure of the reserved goods or of rights to the reserved goods by the
provider.1.9 The customer may neither pledge nor assign objects under retention
of title or title. The customer is only permitted as a reseller to resell in
the ordinary course of business under the condition that the customer has
effectively assigned his claims against his customers in connection with the
resale and the customer transfers ownership to his customer subject to payment.
By concluding this contract, the customer assigns his future claims in
connection with such sales against his customers by way of security to the
provider, who hereby accepts this assignment. 1.10 If the value of the
Provider's security interests exceeds the amount of the secured claims by more
than 20%, the Provider shall release a corresponding share of the security
interests at the request of the Customer. 1.11 The customer is obliged to
impose their contractually agreed restrictions on the recipient in the event of
a permissible transfer of rights of use to deliveries and services. 1.12 If the
customer does not settle a due claim in whole or in part on the contractual
payment date, the provider may revoke agreed payment terms for all claims.
Furthermore, the provider is entitled to provide further services only against
advance payment or against security by means of a performance guarantee from a
credit institution or credit insurer authorised in the European Union. The
advance payment must include the respective billing period or – in the case of one-off
services – their remuneration. 1.13 In the event of the customer's economic
inability to fulfil its obligations towards the provider, the provider may
terminate existing exchange contracts with the customer by withdrawal,
continuing obligations by termination without notice, even in the event of an
insolvency application by the customer. § 321 BGB and § 112 InsO remain
unaffected. The customer shall inform the provider in writing at an early stage
of an imminent insolvency.1.14 Fixed performance dates should only be expressly
agreed in documented form. The agreement of a fixed performance date is subject
to the proviso that the provider receives the services of his respective
upstream suppliers in a timely manner and in accordance with the contract.
2 Cooperation, obligations to cooperate,
confidentiality
2.1 Customer and provider each appoint a responsible contact person. Unless
otherwise agreed, communication between the customer and the provider takes
place via these contact persons. The contact persons must immediately bring
about all decisions related to the execution of the contract. The decisions
must be documented in a binding manner. 2.2 The customer is obliged to support
the provider as far as necessary and to create all the conditions necessary for
the proper execution of the order in his sphere of operation. 2.3 Insofar as it
is agreed in the contract that services can be provided on site at the
customer's premises, the customer shall provide sufficient workplaces and work equipment
free of charge at the request of the provider. 2.4 Unless otherwise agreed, the
customer shall ensure proper data backup and default preparedness for data and
hardware, apps that are appropriate to their nature and significance. 2.5 The
customer must report defects in writing immediately in a comprehensible and
detailed form, stating all information relevant for the detection and analysis
of defects. For this purpose, in particular, the individual steps that led to
the occurrence of the defect must be described, so that the provider has the
opportunity to reproduce the defect or error. 2.6 The customer shall provide
the provider with appropriate support on request in the examination and
assertion of claims against other parties in connection with the provision of
services. This applies in particular to recourse claims of the provider against
upstream suppliers. 2.7 The contracting parties are obliged to maintain secrecy
about business and trade secrets as well as about other information designated
as confidential that becomes known in connection with the execution of the
contract. The transfer of such information to persons who are not involved in
the conclusion, execution or execution of the contract may only take place with
the written consent of the other contractual partner. Unless otherwise agreed,
this obligation ends after five years after the respective information becomes
known, but not before its termination in the case of continuing obligations.
2.8 The contracting parties will also impose these obligations on their
employees and any third parties used. 2.9 The contracting parties are aware
that electronic and unencrypted communication (e.B. by e-mail) is fraught with
security risks. With this type of communication, they will therefore not assert
any claims based on the lack of encryption, unless encryption has been
previously agreed.
3 Disruptions in the provision of services
3.1 If a cause for which the Provider is not responsible, including trade
disputes between countries or import embargoes, impairs compliance with
deadlines ("Disruption"), the dates shall be postponed by the
duration of the disruption, including, if necessary, an appropriate restart
period. A contractual partner must inform the other contractual partner
immediately of the cause of a malfunction occurring in his area and the
duration of the postponement. 3.2 If the effort increases due to a malfunction,
the provider may also demand the remuneration of the additional expenses,
unless the customer is not responsible for the disruption and the cause of
which lies outside his area of responsibility. 3.3 If the customer can withdraw
from the contract due to improper performance of the provider and or demand
damages instead of the service or claims such, the customer will declare in
writing at the request of the provider within a reasonable period of time
whether he asserts these rights or wishes to continue to provide the service.
In the event of a withdrawal, the customer must reimburse the provider for the
value of previously existing possibilities of use; the same applies to
deterioration due to intended use. 3.4 If the Provider is in default with the
provision of services, the Customer's compensation for damages and expenses due
to the delay for each completed month of delay shall be limited to 0.5% of the
price for the part of the contractual service that cannot be used due to the
delay. The liability for default is limited to a maximum of 5% of the
remuneration for all contractual services affected by the delay; in the case of
continuing obligations, based on the remuneration for the services concerned
for the full calendar year. In addition and primarily, a percentage of the
remuneration agreed upon at the time of conclusion of the contract shall apply.
This does not apply if a delay is based on gross negligence or intent on the
part of the provider. 3.5 In the event of a delay in performance, the customer
has a right of withdrawal within the framework of the statutory provisions only
if the delay is the responsibility of the provider. If the customer justifiably
asserts damage or reimbursement of expenses instead of performance due to the
delay, he is entitled to demand 1% of the price for each completed week of
delay for the part of the contractual service that cannot be used due to the
delay, but a maximum of 10% of this price in total; in the case of continuing
obligations, based on the remuneration for the services concerned for the full
calendar year. In addition and primarily, a percentage of the remuneration agreed
upon at the time of conclusion of the contract shall apply.
4 Material defects and reimbursement of expenses
4.1 The provider warrants the contractually owed quality of the services.
For an insignificant deviation of the services of the provider from the
contractual quality, there are no claims due to material defects. 4.2 Claims
due to defects also do not exist in the event of excessive or improper use,
natural wear and tear, failure of components of the system environment,
non-reproducible or otherwise verifiable errors by the customer or damage
caused by special external influences that are not assumed under the contract.
This also applies to subsequent modification or repair by the customer or third
parties, unless this does not complicate the analysis and elimination of a
material defect. 4.3 Section 6 shall apply additionally to claims for damages
and reimbursement of expenses. 4.4 The limitation period for claims for
material defects is one year from the beginning of the statutory limitation
period. The statutory deadlines for recourse according to § 478 BGB remain
unaffected. The same applies insofar as the law prescribes longer periods in
accordance with § 438 para. 1 no. 2 or § 634a para. 1 no. 2 BGB, in the event
of an intentional or grossly negligent breach of duty by the provider, in the
case of fraudulent concealment of a defect as well as in cases of injury to
life, body or health as well as for claims under the Product Liability Act. 4.5
The processing of a notification of material defects by the customer by the
provider only leads to the suspension of the limitation period, insofar as the
legal requirements for this are met. A new beginning of the statute of
limitations does not occur as a result. 4.6 Subsequent performance (new delivery
or rectification) may only have an influence on the statute of limitations of
the defect triggering the subsequent performance. 4.7 The Provider may demand
remuneration for its expenses if 4.7.1 it acts on the basis of a report without
a defect being present, unless the Customer could not recognize with reasonable
effort that no defect existed, or 4.7.2 a reported fault is not reproducible or
otherwise verifiable by the Customer as a defect, or 4.7.3 additional effort
due to improper fulfilment of the Customer's obligations (see also Sections
2.2, 2.3, 2.4, 2.5, 2.6 and 5.3).
5 Defects
of title 5.1 The Provider shall only be liable for violations of
third-party rights by his service if the service is used unchanged in
accordance with the contract and in particular in the contractually agreed,
otherwise in the intended operating environment. 5.2 The Provider is liable for
violations of third-party rights only within the European Union and the
European Economic Area as well as at the place of contractual use of the
service. Section 4.1 sentence 1 shall apply accordingly. 5.3 If a third party
asserts against the customer that a service of the provider violates his
rights, the customer immediately notifies the provider. The provider and, if
applicable, its upstream suppliers are entitled, but not obliged, to defend the
asserted claims at their own expense to the extent permissible. 5.4 The
customer is not entitled to acknowledge claims of third parties before he has
given the provider a reasonable opportunity to defend the rights of third
parties in another way. 5.5 If the rights of third parties are violated by a
service provided by the Provider, the Provider shall, at its own discretion and
at its own expense, provide 5.5.1 the Customer with the right to use the
service or 5.5.2 shall design the service without infringement or 5.5.3
withdraw the service with reimbursement of the remuneration paid by the
Customer (less an appropriate compensation for use), if the Provider cannot
achieve any other remedy with reasonable effort. The interests of the customer
are taken into account appropriately. 5.6 Claims of the customer due to defects
of title shall become statute-barred in accordance with Section 4.3 Section 6
shall apply additionally to claims for damages and reimbursement of expenses of
the Customer, Section 4.6 shall apply accordingly to additional expenses of the
Provider.
6 General liability of the provider
6.1 The provider is always liable to the customer 6.1.1 for the damages
caused intentionally or grossly negligently by him and his legal
representatives or vicarious agents, 6.1.2 according to the Product Liability
Act and 6.1.3 for damages resulting from injury to life, limb or health for
which the provider, his legal representatives or vicarious agents are
responsible. 6.2 The provider is liable for lighter Negligence, unless he has violated an
essential contractual obligation, the fulfillment of which makes the proper
execution of the contract possible in the first place or the violation of which
endangers the achievement of the purpose of the contract and on the observance
of which the customer may regularly rely. 6.3 In the event of property damage
and financial loss, this liability is limited to the contractually typical and
foreseeable damage. This also applies to lost profits and missing savings.
Liability for other removed consequential damages is excluded. 6.4 For a single
case of damage, the liability is limited to the contract value, in the case of
ongoing remuneration to the amount of the remuneration per contract year, but
not to less than € 50,000. Section 4.2 shall apply accordingly to the
limitation period. Upon conclusion of the contract, the contracting parties may
agree in writing on further liability, usually against a separate fee. An
individually agreed liability sum takes precedence. The liability according to
section 6.1.2 remains unaffected by this paragraph. 6.5 In addition and
overriding, the liability of the Provider due to slight negligence arising from
the respective contract and its execution for compensation for damages and
expenses is limited to the percentage of the remuneration agreed upon at the
time of conclusion of the contract, regardless of the legal basis. The
liability according to section 6.1.2 remains unaffected by this paragraph. 6.6
From a guarantee declaration, the provider is only liable for damages if this
has been expressly assumed in the guarantee. In the event of slight negligence,
this liability is subject to the restrictions in accordance with Section 6.2.
6.7 In the event of necessary recovery of data (such as hardware, apps), the
Provider shall only be liable for the effort required for the restoration with
proper data backup and failure precautions by the Customer. In the event of slight
negligence on the part of the provider, this liability shall only apply if the
customer has carried out a data backup and default precaution appropriate to
the type of data and components before the incident. 6.8 Sections 6.1 to 6.7
shall apply mutatis mutandis to claims for reimbursement of expenses and other
liability claims of the Customer against the Provider. Sections 3.4 and 3.5
remain unaffected.
7 Data protection
7.1 In principle, the data protection provisions of the provider apply
(www.polarfoxx.com/datenschutz). 7.2 Should additional data protection
agreements on the handling of personal data be necessary (e.B contract for
order processing – AVV), the customer will conclude these with the provider.
8 Miscellaneous
8.1 The customer shall observe import and export regulations applicable to
the deliveries or services on his own responsibility, in particular those of
the People's Republic of China and the USA. In the case of cross-border
delivery or service, the customer shall bear any customs duties, fees and other
charges incurred. The customer shall handle legal or official proceedings in
connection with cross-border deliveries or services on his own responsibility,
unless expressly agreed otherwise. 8.2 German law shall apply. The application
of the UN Convention on Contracts for the International Sale of Goods is
excluded. 8.3 The provider provides its services on the basis of its General
Terms and Conditions (GTC). Terms and conditions of the customer do not apply,
even if the provider has not expressly objected to them. 8.4 The acceptance of
the services by the customer shall be deemed to be an acknowledgement of the
terms and conditions of the provider without waiving the customer's terms and
conditions. 8.5 Other conditions are only binding if the provider has
acknowledged them in writing; in addition, the terms and conditions of the
provider apply. 8.6 The customer agrees to the transfer of the provider's
obligations under this contract to qualified third parties based in Germany,
insofar as this is not unreasonable for the customer in individual cases. 8.7
Changes and additions to this contract shall only be agreed in writing. 8.8 The
place of jurisdiction vis-à-vis a merchant, a legal entity under public law or
a special fund under public law is the registered office of the provider. The
provider can also sue the customer at his registered office.
General Terms and Conditions HARDWARE SALES (B2B) of
polarfoxx.com GmbH hereinafter referred to as "Provider".The following
are the terms and conditions for the use of the GFOXX of PolarFoxx.com GmbH to
you, hereinafter referred to as "Customer". By using the GFOXX, you
agree to the following terms and conditions.9 Subject matter of the contract
Hardware sales
9.1 The quality and scope of services of the hardware as well as the
released operating environment result from the respective product description
and operating instructions, unless otherwise agreed.9.2 The hardware is
delivered including an operating manual, which is exclusively available online.
An installation manual is also only available online.9.3 The delivery of the
hardware requires absolutely necessary iOS or Android apps for their full
functionality, which the customer must obtain separately and install on his
mobile devices. 9.4 Unless otherwise agreed, the commissioning of the hardware
is the responsibility of the customer. If the customer wishes further services
by the provider, such as .B commissioning, installation and demonstration of
the hardware, these must be commissioned separately.
10 Price, transfer of risk
10.1 The respectively valid price lists and offers of the provider shall
apply.10.2 The risk shall pass to the customer directly from the delivery
warehouse. The customer is fully responsible for the transport of the hardware
and bears all associated costs and thus releases the provider from any
transport and handling costs, unless otherwise agreed.
11 Obligations of the customer
11.1 The customer undertakes to establish the necessary operating and
operating conditions so that the hardware can be used functionally. This
applies in particular to the location, temperature and ambient climate for the
hardware. The necessary conditions result from the operating instructions and
the technical description or restrictions. 11.2 Within the framework of
HACCP-compliant documentation, the customer undertakes to read out the
temperature with the associated app on a daily basis, as a possible technical
defect of the hardware and the associated failure of the continuous
documentation of the temperatures cannot be guaranteed. In addition, the
customer undertakes to carry out regular backups of his mobile devices used in
order to avoid possible data loss.
12 Customer's claims for defects
12.1 The Provider shall guarantee that the Hardware complies with the
agreements in accordance with 1.1 when used properly and contractually. 12.2
Section 5 of the Provider's General Terms and Conditions shall also apply to
defects. 12.3 Section 4 of the Provider's General Terms and Conditions shall
apply in addition to material defects in accordance with the following
provisions (Sections 4.2 to 4.7). 12.4 The Customer shall only have claims for
defects if: if reported defects are
reproducible or otherwise verifiable by the customer. Section 2.5 of the
Provider's General Terms and Conditions shall apply in particular to the
notification of defects. 12.5 If the customer is entitled to claims for
defects, he initially only has the right to subsequent performance within a
reasonable period of time. The subsequent performance includes, at the choice
of the provider, either repair or new delivery. The interests of the customer
are taken into account in the selection. 12.6 Ownership of parts that are
replaced on the basis of subsequent performance shall pass to the Provider.
12.7 The customer shall enable the provider to install and remove the goods as
part of the supplementary performance, unless this is unreasonable for the
customer. Before taking his own measures to remedy the defect, the customer
shall consult with the provider. 12.8 If the customer is entitled to
reimbursement of expenses, this shall only exist to a reasonable extent, taking
into account the value of the service in question in a defect-free condition
and the significance of the defect. 12.9 If the supplementary performance fails
or if it cannot be carried out for other reasons, the customer may, under the
statutory conditions, reduce the remuneration, withdraw from the contract
and/or – under the conditions of Section 6 of the General Terms and Conditions
of the Provider – demand compensation for damages or expenses. The customer
exercises a right of choice to which he is entitled with regard to these claims
for defects within a reasonable period of time, usually within 14 calendar days
if possible the customer takes note of the right to choose. 12.10 If the
customer withdraws from the contract, the provider will take back the hardware
and repay the remuneration paid by the customer minus the possibilities of use
granted to the customer, at most the usual sales value of this hardware when it
was returned. In principle, these possible uses are calculated on the basis of
a degressive depreciation over a period of use of three years. Both contracting
parties reserve the right to prove that a longer or shorter period of use is to
be taken as a basis.
13 Data protection
13.1 Insofar as the provider can access personal data of the customer or
from his area, he will act exclusively as a contract processor and process and
use this data only for the execution of the contract. For this purpose, a
separate contract for order processing (DPA) must be concluded.
14 Miscellaneous
14.1 The General Terms and Conditions of the Provider shall also apply.
TERMS & Conditions
General License Terms GFOXX (hereinafter referred
to as "ALB")These GTC apply to all services offered by Polarfoxx.com
GmbH, Martinstraße 63, 53332 Bornheim (hereinafter referred to as
"Provider") via the GFOXX application (hereinafter referred to as
"App").
1 General provisions and initial setup
1.1 These GTC apply to the free provision of the GFOXX App. By registering
in accordance with Section 2, the user acknowledges the GTC valid at that time.
The GTC can be called up at any time in the currently valid version via the
menu item "Terms of Use" in the settings of the app.1.2 These GTC
apply exclusively. Deviating, conflicting or supplementary general terms and
conditions of the user shall only become part of the contract if and to the
extent that the provider has expressly agreed to their validity. The consent
requirement also applies if the provider carries out the services without
reservation in knowledge of the general terms and conditions of the user.1.3
The contract language is german. If translations into languages other than
german are made of these GTC or other contract-related declarations and
documents ("reading versions"), only the German version is binding.1.4
The app can be accessed at any time without registration via the App Stores of
Google and Apple. In order to use the functionalities offered by the provider
via the app, the initial setup of the GFOOX Temp Monitoring Device
(hereinafter: "Device") is required. The steps set out in the User's
Manual (available online at polarfoxx.com/benutzerhandbuecher) apply.
2 Object of performance of the app
2.1 The main obligation of the provider is the provision of the app. This
enables users to monitor the data collected by a device and generate reports. A
prerequisite for proper operation is that the connected device is installed
properly and in accordance with the instructions stored in the user manual, put
into operation and maintained.2.2 The provider provides the app in the same way
as it was during the initial setup in accordance with para. 1.4 and the service
description valid at that time was available ("as is"). In all other
respects, the user has no claim to a specific design or equipment of the app.
The provider reserves the right to change the app in whole or in part at its
own reasonable discretion, taking into account the interests of the user, or to
discontinue it permanently or temporarily, provided that this does not impair
essential contractual obligations of the provider and this is reasonable for
the user. Furthermore, the provider reserves the right to change or extend the
content and structure of the app as well as the associated user interface,
provided that this does not or not significantly impair the fulfilment of the
purpose of the contract concluded with the user.
3 Rights of use, decompilation
3.1 The customer receives a simple, non-exclusive, spatially and temporally
unlimited right of use to the app. The publication or making available of the
underlying source code is not owed. Any use of the app that goes beyond the
provisions in these GTC requires our written consent.3.2 The user is not
permitted to change, adapt, translate or create edits of the app. 3.3 A user
may not sell, give away or lend, rent or lease the app and the rights granted
to him for use to third parties without the prior consent of the provider.
Excluded from this is the case that the User transfers all his rights to use
the App to another natural or legal person, provided that: (1) the User (i)
transfers these GTC and (ii) the App and the devices connected to the App,
including all copies, updates and previous versions, to this natural or legal
person, (2) the user does not retain any
copies, including backup copies and other copies stored on a terminal device,
and (3) the acquirer accepts the provisions of these GTC as well as other
provisions according to which the user has acquired a valid right of use.3.4
The user is not permitted to remove or circumvent the existing protection
mechanisms of the app against unauthorized use,
unless this is necessary to achieve trouble-free use. Copyright notices
and other features used for software identification may also not be removed or
changed. 3.5 The User may not reverse engineer, decompile or disassemble the
App or otherwise attempt to determine the source code of the App, except to the
extent that the User may reverse engineer or decompile the App in accordance
with applicable law.
4 Contents and obligations of the users
4.1 The user is entitled and obliged to use the app exclusively for his own
purposes. The user must ensure that the values determined by the app are
regularly checked manually, i.e. using their own measuring device, for their
correctness. In addition, he must ensure that the device functions properly
during operation and is supplied with power.4.2 The user is obliged to notify
the provider immediately by e-mail of defects in the app or any functional
restrictions that occur after their discovery. In the case of material defects,
this is done with a description of the time of occurrence of the defects and
the more detailed circumstances.4.3 The commissioning of the app and the device
must be carried out exclusively by expert personnel. Before commissioning, the
user must ensure that the technical requirements described in the user manual
for the proper operation of the app are created and continuously maintained.
This applies in particular with regard to the output of HACCP-compliant reports
to print media. 4.4 Each user must observe the applicable law and protect the
rights of third parties. In particular, users are prohibited from using
mechanisms, software and/or scripts that go beyond the functionalities and
interfaces provided on the app by the provider, in particular if this blocks,
modifies, copies and/or overwrites the provider's services and these services
are necessary for the contractual use of the app.4.5 The provider is only
obliged to create backups if if this is
part of the services to be provided to the user according to the service
description.
5 Updates
5.1 It is at the discretion of the Provider to develop updates for the App
and to make them available to the User. Unless otherwise agreed in the event of
the provision, the provision shall be made available without remuneration. 5.2
Technically, the operation of an update, even if it is able to run
independently, requires a previously lawfully acquired version of the app for
which the update appears.5.3 With the installation of an independently
executable update of the app, the user loses the right to continue using the
old version of the app.
6 Warranty
6.1 If the user is an entrepreneur within the meaning of § 14 BGB (German
Civil Code), he must check the app immediately after commissioning for obvious
defects and inform the provider immediately if they exist, otherwise a warranty
for these defects is excluded. The same applies if such a defect becomes
apparent later. § 377 HGB applies.6.2 If the user is an entrepreneur, the
provider is initially entitled to subsequent performance in the event of a material
defect, i.e. at his own discretion to remedy the defect
("rectification") or replacement delivery. As part of the replacement
delivery, the user may adopt a new version of the app (e.B. by update, bug fix,
etc.), unless this leads to unreasonable impairments. 6.3 The Provider shall
also fulfil its obligation to remedy the defect by providing updates provided
with an automatic installation routine for download and by offering the User
telephone support to solve any installation problems that may arise.6.4 With
the exception of claims for damages, warranty claims due to material defects
shall become statute-barred in two years or in one year if the User is an
entrepreneur. The statute of limitations begins commissioning of the app.
7 Liability
7.1 The provider warrants the agreed quality of the app in accordance with
the statutory provisions, unless otherwise specified. Unless otherwise stated
in these GTC, the provider is only liable for intent and gross negligence. This
applies accordingly to legal representatives and vicarious agents, including
subcontractors.7.2 The provider does not guarantee and does not give any
assurance or guarantee that the values determined by the app are correct.
However, if there are discrepancies between the measured values determined by
means of the app and the actual measured values, we recommend that our users
contact us and inform us of this so that we can further improve our app.7.3 For
damages caused intentionally or through gross negligence by the app, the provider
or its legal representatives, executive employees or simple vicarious
agents, 7.4 In cases of slightly
negligent breach of only insignificant contractual obligations, the provider is
not liable. In all other respects, the liability of the provider for damages
caused by slight negligence is limited to those damages to which the occurrence
of which must typically be expected within the framework of the respective
contractual relationship (contractually foreseeable damages). 7.5 The above
limitation of liability does not apply in the event of malice or to claims
arising from product liability.
8 Final provisions
8.1 The law of the Federal Republic of Germany shall apply to the exclusion
of the UN Convention on Contracts for the International Sale of Goods and the
conflict of laws provisions; Art. 3 EGBGB remains unaffected. 8.2 Verbal
ancillary agreements have not been made. Changes and additions to these GTC as
well as all declarations of the parties relating to membership must be made in
text form. This also applies to the cancellation of the formal requirement.8.3
For entrepreneurs, the place of jurisdiction is the registered office of the
provider.8.4 Obligation to provide information in accordance with § 36 VSBG:
The provider is not willing and not obliged to participate in a dispute
resolution procedure of a consumer arbitration board.
General Terms and Conditions (B2B) of PolarFoxx.com
GmbH hereinafter referred to as "Provider".
The following General Terms and Conditions apply to
all contracts, deliveries or other services including consulting services that
you conclude as a (business) customer (B2B) with us as a provider
(PolarFoxx.com GmbH). In addition to the General Terms and Conditions, the
corresponding terms and conditions of the individual types of services that are
purchased also apply. In particular, but not exclusively, these may be the sale
of hardware, the provision of apps, services and the maintenance of the apps of
PolarFoxx.com GmbH.
1 Remuneration, payment, ancillary copyright, dates
1.1 Unless otherwise agreed, the remuneration shall be charged at the
provider's generally valid prices at the time of conclusion of the contract.
Remuneration is generally net prices plus statutory value added tax. 1.2 The
provider can bill monthly or by delivery. If services are remunerated according
to expenditure, the provider documents the type and duration of the activities
and transmits this documentation with the invoice.1.3 If services are provided
by personnel deployment on site, a distance-dependent travel fee will be
charged. If overnight stays are required for organizational or legal reasons to
provide the services, an overnight flat rate will be charged. 1.4 All invoices
are to be paid without deduction no later than 14 calendar days after receipt
free paying agent. 1.5 The customer may only offset or withhold payments due to
defects if he is actually entitled to payment claims due to material or legal
defects of the service. Due to other claims for defects, the customer may only
withhold payments to a proportionate extent taking into account the defect.
Clause 4.1 shall apply accordingly. The customer has no right of retention if
his claim for a defect is time-barred. In all other respects, the customer may
only offset undisputed or legally established claims or exercise retention. 1.6
The provider reserves the title and rights to be granted to the services until
full payment of the owed remuneration, justified retention of defects in
accordance with section 1.5 sentence 2 will be taken into account. Furthermore,
the provider reserves the right of ownership until all his claims arising from
the business relationship with the customer have been fulfilled. 1.7 The
provider is entitled to prohibit the customer from further use of the services
for the duration of a delay in payment by the customer. The provider can only
assert this right for a reasonable period of time, usually for a maximum of 6
months. This does not constitute a withdrawal from the contract. § 449 Abs. 2
BGB remains unaffected. 1.8 If the customer or his customers return the
services, the acceptance of the services does not constitute a withdrawal from
the provider, unless he has expressly declared the withdrawal. The same applies
to the seizure of the reserved goods or of rights to the reserved goods by the
provider.1.9 The customer may neither pledge nor assign objects under retention
of title or title. The customer is only permitted as a reseller to resell in
the ordinary course of business under the condition that the customer has
effectively assigned his claims against his customers in connection with the
resale and the customer transfers ownership to his customer subject to payment.
By concluding this contract, the customer assigns his future claims in
connection with such sales against his customers by way of security to the
provider, who hereby accepts this assignment. 1.10 If the value of the
Provider's security interests exceeds the amount of the secured claims by more
than 20%, the Provider shall release a corresponding share of the security
interests at the request of the Customer. 1.11 The customer is obliged to
impose their contractually agreed restrictions on the recipient in the event of
a permissible transfer of rights of use to deliveries and services. 1.12 If the
customer does not settle a due claim in whole or in part on the contractual
payment date, the provider may revoke agreed payment terms for all claims.
Furthermore, the provider is entitled to provide further services only against
advance payment or against security by means of a performance guarantee from a
credit institution or credit insurer authorised in the European Union. The
advance payment must include the respective billing period or – in the case of
one-off services – their remuneration. 1.13 In the event of the customer's
economic inability to fulfil its obligations towards the provider, the provider
may terminate existing exchange contracts with the customer by withdrawal,
continuing obligations by termination without notice, even in the event of an
insolvency application by the customer. § 321 BGB and § 112 InsO remain
unaffected. The customer shall inform the provider in writing at an early stage
of an imminent insolvency.1.14 Fixed performance dates should only be expressly
agreed in documented form. The agreement of a fixed performance date is subject
to the proviso that the provider receives the services of his respective
upstream suppliers in a timely manner and in accordance with the contract.
2 Cooperation, obligations to cooperate,
confidentiality
2.1 Customer and provider each appoint a responsible contact person. Unless
otherwise agreed, communication between the customer and the provider takes
place via these contact persons. The contact persons must immediately bring
about all decisions related to the execution of the contract. The decisions
must be documented in a binding manner. 2.2 The customer is obliged to support
the provider as far as necessary and to create all the conditions necessary for
the proper execution of the order in his sphere of operation. 2.3 Insofar as it
is agreed in the contract that services can be provided on site at the
customer's premises, the customer shall provide sufficient workplaces and work
equipment free of charge at the request of the provider. 2.4 Unless otherwise
agreed, the customer shall ensure proper data backup and default preparedness
for data and hardware, apps that are appropriate to their nature and
significance. 2.5 The customer must report defects in writing immediately in a
comprehensible and detailed form, stating all information relevant for the
detection and analysis of defects. For this purpose, in particular, the
individual steps that led to the occurrence of the defect must be described, so
that the provider has the opportunity to reproduce the defect or error. 2.6 The
customer shall provide the provider with appropriate support on request in the
examination and assertion of claims against other parties in connection with
the provision of services. This applies in particular to recourse claims of the
provider against upstream suppliers. 2.7 The contracting parties are obliged to
maintain secrecy about business and trade secrets as well as about other
information designated as confidential that becomes known in connection with
the execution of the contract. The transfer of such information to persons who
are not involved in the conclusion, execution or execution of the contract may
only take place with the written consent of the other contractual partner.
Unless otherwise agreed, this obligation ends after five years after the
respective information becomes known, but not before its termination in the
case of continuing obligations. 2.8 The contracting parties will also impose
these obligations on their employees and any third parties used. 2.9 The
contracting parties are aware that electronic and unencrypted communication
(e.B. by e-mail) is fraught with security risks. With this type of
communication, they will therefore not assert any claims based on the lack of
encryption, unless encryption has been previously agreed.
3 Disruptions in the provision of services
3.1 If a cause for which the Provider is not responsible, including trade
disputes between countries or import embargoes, impairs compliance with
deadlines ("Disruption"), the dates shall be postponed by the
duration of the disruption, including, if necessary, an appropriate restart
period. A contractual partner must inform the other contractual partner
immediately of the cause of a malfunction occurring in his area and the
duration of the postponement. 3.2 If the effort increases due to a malfunction,
the provider may also demand the remuneration of the additional expenses,
unless the customer is not responsible for the disruption and the cause of
which lies outside his area of responsibility. 3.3 If the customer can withdraw
from the contract due to improper performance of the provider and or demand
damages instead of the service or claims such, the customer will declare in
writing at the request of the provider within a reasonable period of time
whether he asserts these rights or wishes to continue to provide the service.
In the event of a withdrawal, the customer must reimburse the provider for the
value of previously existing possibilities of use; the same applies to
deterioration due to intended use. 3.4 If the Provider is in default with the provision
of services, the Customer's compensation for damages and expenses due to the
delay for each completed month of delay shall be limited to 0.5% of the price
for the part of the contractual service that cannot be used due to the delay.
The liability for default is limited to a maximum of 5% of the remuneration for
all contractual services affected by the delay; in the case of continuing
obligations, based on the remuneration for the services concerned for the full
calendar year. In addition and primarily, a percentage of the remuneration
agreed upon at the time of conclusion of the contract shall apply. This does
not apply if a delay is based on gross negligence or intent on the part of the
provider. 3.5 In the event of a delay in performance, the customer has a right
of withdrawal within the framework of the statutory provisions only if the
delay is the responsibility of the provider. If the customer justifiably
asserts damage or reimbursement of expenses instead of performance due to the
delay, he is entitled to demand 1% of the price for each completed week of
delay for the part of the contractual service that cannot be used due to the
delay, but a maximum of 10% of this price in total; in the case of continuing
obligations, based on the remuneration for the services concerned for the full
calendar year. In addition and primarily, a percentage of the remuneration
agreed upon at the time of conclusion of the contract shall apply.
4 Material defects and reimbursement of expenses
4.1 The provider warrants the contractually owed quality of the services.
For an insignificant deviation of the services of the provider from the
contractual quality, there are no claims due to material defects. 4.2 Claims
due to defects also do not exist in the event of excessive or improper use,
natural wear and tear, failure of components of the system environment,
non-reproducible or otherwise verifiable errors by the customer or damage
caused by special external influences that are not assumed under the contract.
This also applies to subsequent modification or repair by the customer or third
parties, unless this does not complicate the analysis and elimination of a
material defect. 4.3 Section 6 shall apply additionally to claims for damages
and reimbursement of expenses. 4.4 The limitation period for claims for
material defects is one year from the beginning of the statutory limitation
period. The statutory deadlines for recourse according to § 478 BGB remain
unaffected. The same applies insofar as the law prescribes longer periods in
accordance with § 438 para. 1 no. 2 or § 634a para. 1 no. 2 BGB, in the event
of an intentional or grossly negligent breach of duty by the provider, in the
case of fraudulent concealment of a defect as well as in cases of injury to
life, body or health as well as for claims under the Product Liability Act. 4.5
The processing of a notification of material defects by the customer by the
provider only leads to the suspension of the limitation period, insofar as the
legal requirements for this are met. A new beginning of the statute of
limitations does not occur as a result. 4.6 Subsequent performance (new
delivery or rectification) may only have an influence on the statute of
limitations of the defect triggering the subsequent performance. 4.7 The
Provider may demand remuneration for its expenses if 4.7.1 it acts on the basis
of a report without a defect being present, unless the Customer could not
recognize with reasonable effort that no defect existed, or 4.7.2 a reported
fault is not reproducible or otherwise verifiable by the Customer as a defect,
or 4.7.3 additional effort due to improper fulfilment of the Customer's
obligations (see also Sections 2.2, 2.3,
2.4, 2.5, 2.6 and 5.3).
5 Defects
of title 5.1 The Provider shall only be liable for violations of
third-party rights by his service if the service is used unchanged in
accordance with the contract and in particular in the contractually agreed,
otherwise in the intended operating environment. 5.2 The Provider is liable for
violations of third-party rights only within the European Union and the
European Economic Area as well as at the place of contractual use of the
service. Section 4.1 sentence 1 shall apply accordingly. 5.3 If a third party
asserts against the customer that a service of the provider violates his
rights, the customer immediately notifies the provider. The provider and, if
applicable, its upstream suppliers are entitled, but not obliged, to defend the
asserted claims at their own expense to the extent permissible. 5.4 The
customer is not entitled to acknowledge claims of third parties before he has
given the provider a reasonable opportunity to defend the rights of third
parties in another way. 5.5 If the rights of third parties are violated by a
service provided by the Provider, the Provider shall, at its own discretion and
at its own expense, provide 5.5.1 the Customer with the right to use the
service or 5.5.2 shall design the service without infringement or 5.5.3
withdraw the service with reimbursement of the remuneration paid by the
Customer (less an appropriate compensation for use), if the Provider cannot
achieve any other remedy with reasonable effort. The interests of the customer
are taken into account appropriately. 5.6 Claims of the customer due to defects
of title shall become statute-barred in accordance with Section 4.3 Section 6
shall apply additionally to claims for damages and reimbursement of expenses of
the Customer, Section 4.6 shall apply accordingly to additional expenses of the
Provider.
6 General liability of the provider
6.1 The provider is always liable to the customer 6.1.1 for the damages
caused intentionally or grossly negligently by him and his legal
representatives or vicarious agents, 6.1.2 according to the Product Liability
Act and 6.1.3 for damages resulting from injury to life, limb or health for
which the provider, his legal representatives or vicarious agents are
responsible. 6.2 The provider is liable for lighter Negligence, unless he has violated an
essential contractual obligation, the fulfillment of which makes the proper
execution of the contract possible in the first place or the violation of which
endangers the achievement of the purpose of the contract and on the observance
of which the customer may regularly rely. 6.3 In the event of property damage
and financial loss, this liability is limited to the contractually typical and
foreseeable damage. This also applies to lost profits and missing savings.
Liability for other removed consequential damages is excluded. 6.4 For a single
case of damage, the liability is limited to the contract value, in the case of
ongoing remuneration to the amount of the remuneration per contract year, but
not to less than € 50,000. Section 4.2 shall apply accordingly to the
limitation period. Upon conclusion of the contract, the contracting parties may
agree in writing on further liability, usually against a separate fee. An
individually agreed liability sum takes precedence. The liability according to
section 6.1.2 remains unaffected by this paragraph. 6.5 In addition and
overriding, the liability of the Provider due to slight negligence arising from
the respective contract and its execution for compensation for damages and
expenses is limited to the percentage of the remuneration agreed upon at the
time of conclusion of the contract, regardless of the legal basis. The
liability according to section 6.1.2 remains unaffected by this paragraph. 6.6
From a guarantee declaration, the provider is only liable for damages if this
has been expressly assumed in the guarantee. In the event of slight negligence,
this liability is subject to the restrictions in accordance with Section 6.2.
6.7 In the event of necessary recovery of data (such as hardware, apps), the
Provider shall only be liable for the effort required for the restoration with
proper data backup and failure precautions by the Customer. In the event of
slight negligence on the part of the provider, this liability shall only apply
if the customer has carried out a data backup and default precaution
appropriate to the type of data and components before the incident. 6.8
Sections 6.1 to 6.7 shall apply mutatis mutandis to claims for reimbursement of
expenses and other liability claims of the Customer against the Provider.
Sections 3.4 and 3.5 remain unaffected.
7 Data protection
7.1 In principle, the data protection provisions of the provider apply
(www.polarfoxx.com/datenschutz). 7.2 Should additional data protection
agreements on the handling of personal data be necessary (e.B contract for
order processing – AVV), the customer will conclude these with the provider.
8 Miscellaneous
8.1 The customer shall observe import and export regulations applicable to
the deliveries or services on his own responsibility, in particular those of
the People's Republic of China and the USA. In the case of cross-border
delivery or service, the customer shall bear any customs duties, fees and other
charges incurred. The customer shall handle legal or official proceedings in
connection with cross-border deliveries or services on his own responsibility,
unless expressly agreed otherwise. 8.2 German law shall apply. The application
of the UN Convention on Contracts for the International Sale of Goods is
excluded. 8.3 The provider provides its services on the basis of its General
Terms and Conditions (GTC). Terms and conditions of the customer do not apply,
even if the provider has not expressly objected to them. 8.4 The acceptance of
the services by the customer shall be deemed to be an acknowledgement of the
terms and conditions of the provider without waiving the customer's terms and
conditions. 8.5 Other conditions are only binding if the provider has
acknowledged them in writing; in addition, the terms and conditions of the
provider apply. 8.6 The customer agrees to the transfer of the provider's
obligations under this contract to qualified third parties based in Germany,
insofar as this is not unreasonable for the customer in individual cases. 8.7
Changes and additions to this contract shall only be agreed in writing. 8.8 The
place of jurisdiction vis-à-vis a merchant, a legal entity under public law or
a special fund under public law is the registered office of the provider. The
provider can also sue the customer at his registered office.
General Terms and Conditions HARDWARE SALES (B2B) of
polarfoxx.com GmbH hereinafter referred to as "Provider".The
following are the terms and conditions for the use of the GFOXX of
PolarFoxx.com GmbH to you, hereinafter referred to as "Customer". By
using the GFOXX, you agree to the following terms and conditions.9 Subject
matter of the contract Hardware sales
9.1 The quality and scope of services of the hardware as well as the
released operating environment result from the respective product description
and operating instructions, unless otherwise agreed.9.2 The hardware is
delivered including an operating manual, which is exclusively available online.
An installation manual is also only available online.9.3 The delivery of the
hardware requires absolutely necessary iOS or Android apps for their full
functionality, which the customer must obtain separately and install on his
mobile devices. 9.4 Unless otherwise agreed, the commissioning of the hardware
is the responsibility of the customer. If the customer wishes further services
by the provider, such as .B commissioning, installation and demonstration of
the hardware, these must be commissioned separately.
10 Price, transfer of risk
10.1 The respectively valid price lists and offers of the provider shall
apply.10.2 The risk shall pass to the customer directly from the delivery
warehouse. The customer is fully responsible for the transport of the hardware
and bears all associated costs and thus releases the provider from any
transport and handling costs, unless otherwise agreed.
11 Obligations of the customer
11.1 The customer undertakes to establish the necessary operating and
operating conditions so that the hardware can be used functionally. This
applies in particular to the location, temperature and ambient climate for the
hardware. The necessary conditions result from the operating instructions and
the technical description or restrictions. 11.2 Within the framework of
HACCP-compliant documentation, the customer undertakes to read out the
temperature with the associated app on a daily basis, as a possible technical
defect of the hardware and the associated failure of the continuous
documentation of the temperatures cannot be guaranteed. In addition, the customer
undertakes to carry out regular backups of his mobile devices used in order to
avoid possible data loss.
12 Customer's claims for defects
12.1 The Provider shall guarantee that the Hardware complies with the
agreements in accordance with 1.1 when used properly and contractually. 12.2
Section 5 of the Provider's General Terms and Conditions shall also apply to
defects. 12.3 Section 4 of the Provider's General Terms and Conditions shall
apply in addition to material defects in accordance with the following
provisions (Sections 4.2 to 4.7). 12.4 The Customer shall only have claims for
defects if: if reported defects are
reproducible or otherwise verifiable by the customer. Section 2.5 of the
Provider's General Terms and Conditions shall apply in particular to the
notification of defects. 12.5 If the customer is entitled to claims for
defects, he initially only has the right to subsequent performance within a
reasonable period of time. The subsequent performance includes, at the choice
of the provider, either repair or new delivery. The interests of the customer
are taken into account in the selection. 12.6 Ownership of parts that are
replaced on the basis of subsequent performance shall pass to the Provider.
12.7 The customer shall enable the provider to install and remove the goods as
part of the supplementary performance, unless this is unreasonable for the
customer. Before taking his own measures to remedy the defect, the customer
shall consult with the provider. 12.8 If the customer is entitled to reimbursement
of expenses, this shall only exist to a reasonable extent, taking into account
the value of the service in question in a defect-free condition and the
significance of the defect. 12.9 If the supplementary performance fails or if
it cannot be carried out for other reasons, the customer may, under the
statutory conditions, reduce the remuneration, withdraw from the contract
and/or – under the conditions of Section 6 of the General Terms and Conditions
of the Provider – demand compensation for damages or expenses. The customer
exercises a right of choice to which he is entitled with regard to these claims
for defects within a reasonable period of time, usually within 14 calendar days
if possible the customer takes note of the right to choose. 12.10 If the
customer withdraws from the contract, the provider will take back the hardware
and repay the remuneration paid by the customer minus the possibilities of use
granted to the customer, at most the usual sales value of this hardware when it
was returned. In principle, these possible uses are calculated on the basis of
a degressive depreciation over a period of use of three years. Both contracting
parties reserve the right to prove that a longer or shorter period of use is to
be taken as a basis.
13 Data protection
13.1 Insofar as the provider can access personal data of the customer or
from his area, he will act exclusively as a contract processor and process and
use this data only for the execution of the contract. For this purpose, a
separate contract for order processing (DPA) must be concluded.
14 Miscellaneous
14.1 The General Terms and Conditions of the Provider shall also apply.