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General Terms and Conditions for the company punkt.de GmbH

§ 1 Validity of the general terms and conditions

1. These General Terms and Conditions of Business and Delivery apply in addition to the General Provider Conditions for all products, deliveries and services, as well as all contracts that punkt.de concludes with entrepreneurs within the meaning of § 14 BGB, in particular for supplementary deliveries of hardware or software or supplementary work or services. General terms and conditions of the customer are expressly not part of the contract, even if they are not expressly contradicted by punkt.de. In the event that the customer does not wish to accept the following general terms and conditions of business and delivery, he must notify punkt.de in writing in advance.
2. Deviating agreements in individual cases require the written form to be effective.

§ 2 Type of service and service content

The services provided by punkt.de are services. Should a service be classified as a work service according to its nature and character, § 9 and §10 shall apply in addition.

§ 3 Order

1. All offers of punkt.de represent a non-binding invitation to the customer and are always subject to change.
2. punkt.de is entitled to accept offers within a period of 7 calendar days from receipt of the order by sending an order confirmation or to reject the offer. In the case of postal delivery of goods, an order confirmation will only be sent if requested by the customer. The order confirmation or the rejection of the offer can be made by letter post, e-mail or fax.

§ 4 Terms of payment and prices

1. All invoices from punkt.de are due for payment within ten days of the invoice date without deduction. The date of receipt of payment by punkt.de is decisive.
2. Invoices are issued electronically by punkt.de and can be downloaded digitally by the recipient. We will be happy to send you a paper invoice against reimbursement of costs. Please let us know in writing if you would like this and declare your willingness to pay the costs in writing.
3. In the event of default, punkt.de is entitled to withhold further deliveries and services. If the customer defaults on payment, punkt.de is entitled to charge interest at a rate of 8% above the applicable prime rate. The assertion of a higher damage caused by default remains reserved.
4. If the customer defaults on a payment in whole or in part, all claims to which punkt.de is entitled from the business relationship with the customer shall become due.
5. If the customer does not pay within 10 days of receipt of the reminder, punkt.de is entitled to an extraordinary right of termination. Decisive for the timely payment is the timepunkt des payment is received by punkt.de.
6. All prices are subject to the statutory value added tax. punkt.de is entitled to make partial deliveries.
7. The customer may only offset undisputed or legally established claims.

§ 5 Delivery, service and dispatch

1. All offers are subject to change. Delivery shall only be made while stocks last.
2. If the buyer requests changes or additions to the order after the order has been placed or if other circumstances arise that make it impossible for punkt.de to meet the delivery date, although punkt.de is not responsible for these circumstances, the delivery date shall be postponed by a reasonable period of time. If punkt.de is prevented from fulfilling the contract on time, e.g. due to procurement, manufacturing or delivery disruptions at or its suppliers, or due to problems of the physical line operator, the general legal principles apply with the proviso that the customer can set a grace period of six weeks after the expiry of one month. If non-compliance with a binding delivery date is demonstrably due to mobilization, Krieg riot, strike or lockout or other circumstances for which punkt.de is not responsible according to general legal principles, the delivery period shall be extended accordingly. The customer can withdraw from the contract if he provides punkt.de with a reasonable grace period after expiry of the extended deadline.
3. The withdrawal must be made in writing if punkt.de does not fulfill the contract within the grace period. If punkt.de is unable to fulfill the contract in whole or in part for the aforementioned reasons, it is released from its obligation to deliver.
4. The punkt.de is only in default by written reminder, unless the law expressly designates a reminder as dispensable.
5. The costs for shipping and transport insurance are generally to be borne by the customer, whereby the choice of shipping route and shipping method is at the discretion of punkt.de. The customer is obliged to inspect the goods immediately upon arrival and to report any recognizable transport damage and any damage to the packaging to punkt.de immediately in writing. The same applies to concealed damage. If punkt.de loses its claims against the insurance company or the subcontractor due to the omission of this obligation, the customer shall be liable for all costs resulting from this breach of obligation. The risk is transferred to the customer as soon as the goods leave the factory or warehouse of punkt.de.

§ 6 Retention of title

1. The delivered products remain the property of punkt.de until full payment of all claims of punkt.de arising from the business relationship with the customer in main and secondary matters.
2. Pledging or transfer by way of security of the reserved goods is not permitted.
3. The customer is obliged to properly insure the goods subject to punkt.de 's retention of title (i.e. theft, fire, water and low voltage insurance) and to provide punkt.de with proof of such insurance upon request. In the event of damage, the customer's insurance claim shall be deemed assigned to punkt.de.
4. The customer is not authorized to dispose of the items subject to retention of title.
5. In the event that the customer nevertheless sells the delivery items and punkt.de should approve this, the customer assigns all claims against his buyers to punkt.de upon conclusion of the contract. punkt.de accepts this offer. The customer is obliged to provide punkt.de with all information required to assert these rights and to provide the necessary cooperation.
6. In the event of seizure or confiscation, the customer must inform punkt.de immediately in writing and must inform third parties of the retention of title of punkt.de immediately in a suitable form.

§ 7 Rights

1. Concepts, applications or designs created by punkt.de for the customer or delivered to the customer, in particular for the design and operation of websites, are protected by copyright. The source code is the property of punkt.de.
2. The copyright is owned by punkt.de in relation to the customer.
3. Unless further rights of use are expressly granted to the customer in writing, the customer receives the unlimited and non-exclusive authorization to use the relevant application, the relevant concept or the relevant design on his computer and, if applicable, the computers of his provider only for the customer's own purposes.
4. Reproduction and distribution are expressly prohibited.
5. Use by third parties is only permitted with the express written permission of punkt.de. This does not apply to persons who are active in the customer's business operations as his vicarious agents.
6. Insofar as the customer acquires rights of use to the software of third party manufacturers from punkt.de, the granted right of use is based on the respective license conditions. In case of doubt, it does not exceed the extent specified in paragraph 3.
7. Deviating agreements in individual cases require the written form to be effective.

§ 8 Guarantees

Guarantees, in particular regarding the quality or durability of the deliveries and services of punkt.de, require the explicit and written confirmation of punkt.de.

§ 9 Warranty and acceptance for work services

1. punkt.de shall be liable for defects in contractual services for a period of 12 months after acceptance of the work.
2. After execution of a delivery or service, punkt.de can demand a written declaration from the customer that the delivery or service has been provided in accordance with the contract (acceptance).
3. Acceptance may only be refused in the event of significant deviations from the contract, in particular if the delivery or service has significant defects or defects that cannot be rectified.
4. Acceptance shall be deemed to have been declared if the customer pays the agreed remuneration without reservation, if he uses the delivery or service for more than four weeks without complaint or if no declaration is received by punkt.de within two weeks of requesting the written declaration of acceptance in accordance with § 9 No. 2. The date of receipt at punkt.de is decisive for this.
5. The customer shall ensure that the data protection requirements for the use of the delivery at the place of use are fulfilled. Missing data protection requirements do not entitle the customer to refuse acceptance.

§ 10 Special regulations for software

1. punkt.de points out that it is not possible to create computer software that is completely error-free according to the state of the art.
2. The customer shall examine standard software immediately after delivery and notify the seller of obvious errors in writing without delay.
3. If an error occurs in the software, the customer is obliged to report this in writing to punkt.de within two weeks. As part of the written notification of defects, the defect and its manifestation must be described in such detail that it is possible to verify the defect (e.g. presentation of the error messages) and to exclude an operating error (e.g. specification of the work steps). If the customer is a merchant, the provisions of Section 377 of the German Commercial Code (HGB) on the obligation to inspect and give notice of defects under commercial law shall apply in addition, even if the customer has not been instructed in the operation of the system.
4. If the complaint proves to be justified, the customer shall set punkt.de a reasonable deadline for subsequent performance. The customer informs punkt.de which type of supplementary performance - improvement of the delivered or delivery of a new, defect-free item - he wishes. However, punkt.de is entitled to refuse the chosen supplementary performance if this can only be carried out with disproportionate costs for them and if the other type of supplementary performance would not bring any significant disadvantages for the customer. Furthermore, punkt.de may refuse subsequent performance altogether if it can only be carried out at disproportionate cost to it.
5. To carry out the supplementary performance for the same or directly related defect, punkt.de is entitled to two attempts within the period set by the customer. After the second failed attempt at supplementary performance, the customer may withdraw from the contract or reduce the license fee. The right of withdrawal or reduction can be exercised after the first unsuccessful attempt at supplementary performance if the customer cannot reasonably be expected to make a second attempt within the set period. If subsequent performance has been refused under the conditions set out above, the customer shall be entitled to the right of reduction or withdrawal immediately.
6. Withdrawal due to an insignificant defect is excluded.
7. If a defect occurs as a result of an incorrect or non-updated driver, the customer shall grant punkt.de the right to deliver a functional driver within ten days of notification to punkt.de.
8. Incompatibilities between hardware and accessories only entitle the customer to conversion if a fault in the hardware supplied can be determined and no accessories from other manufacturers are usable.
9. punkt.de is entitled to install an alternative solution if it is actually impossible or unreasonable for economic reasons to rectify the fault, if this leads to a suitable solution to the problem.
10. Instead of manuals, punkt.de is entitled to provide English-language manuals or integrated online help.
11. The punkt.de does not guarantee that the software meets the special requirements of the customer or that it works together with the customer's programs or the customer's existing hardware.
12. If the customer has made a warranty claim against punkt.de and it turns out that either there is no defect or that the claimed defect does not oblige punkt.de to provide a warranty, the customer must reimburse all expenses incurred by punkt.de if he is responsible for the claim against punkt.de due to gross negligence or willful misconduct.
13. The customer shall carry out a check immediately after installation, defect rectification work, maintenance work or other interventions by punkt.de on the EDP system as to whether the functionality of the data backup is still given and record the result in writing. The customer shall ensure that a reliable, prompt and comprehensive data routine guarantees the data backup.

§ 11 Limitation of liability

1. punkt.de shall be liable for intent and gross negligence in accordance with the statutory provisions.
2. In the case of slight negligence, punkt.de is only liable if an obligation is violated, the fulfillment of which makes the proper execution of the contract possible in the first place, the violation of which endangers the achievement of the purpose of the contract and on the observance of which the contractual partner regularly relies (cardinal obligation) or a case of delay or impossibility exists. Likewise, all those secondary obligations must be taken into account which, in the event of a culpable breach of duty, could lead to the achievement of the purpose of the contract being jeopardized.
3. In the event of liability for slight negligence, this liability shall be limited to such damages as are foreseeable or typical. This limitation of liability shall also apply in the case of liability for slight negligence in the event of initial inability on the part of punkt.de. Liability for the absence of guaranteed characteristics due to fraudulent intent, for personal injury, defects of title according to the Product Liability Act and the Federal Data Protection Act remains unaffected.
4. In the event of a warranty or liability claim against punkt.de, contributory negligence on the part of the customer shall be taken into account appropriately, in particular in the event of insufficient error messages or inadequate data backup. Insufficient data backup is deemed to exist in particular if the customer has failed to take precautions against external influences, in particular against computer viruses and other phenomena that could endanger individual data or an entire database, by taking appropriate, state-of-the-art security measures.

§ 12 Third-party products

1. If required, the customer may request third-party products and punkt.de may agree to procure these third-party products in connection with the services provided by punkt.de. In this case, the provisions of this Agreement shall apply.
2. punkt.de will procure the requested Third Party Products for the Customer as a limited liability agent from a third party supplier and will pass on to the Customer all applicable terms, including the rights of defects or license terms (in the case of software) of the third party manufacturer or importer.
3. All orders for third party products cannot be canceled and the products cannot be returned to punkt.de.
4. punkt.de is not liable
   a) for delays that occur in the delivery of third party products
   b) for material defects and defects of title
   c) for the compatibility of punkt.de products with third party products
   d) for patent and copyright infringements
   e) for claims for damages with regard to third party products
5. However, unless otherwise agreed in a service description, punkt.de will act as a liaison between the customer and the third party supplier with regard to claims arising during the limitation period for rights in the event of defects.

§ 13 Evidence clause and burden of proof

Data stored in electronic registers or otherwise in electronic form at punkt.de shall be considered admissible evidence for the proof of data transfers, contracts and executed payments between the parties.

§ 14 Terms of payment

If no individual contractual agreements have been made, the following shall apply:

1. Monthly fees shall be paid pro rata for the remainder of the month beginning on the day of operational provision. Thereafter, these fees are due monthly in advance by the 3rd working day. If the charge is to be calculated for parts of a calendar month, it shall be calculated at 1/30 of the monthly charge for each day.
2. Usage-dependent fees (traffic fees) are payable after the service has been provided.
3. If the fee is dependent on invoicing by punkt.de and the customer does not participate in the direct debit procedure, the invoice amount is due at the latest on the 10th day after receipt of the invoice.

§ 15 Place of fulfillment and jurisdiction

1. The place of fulfillment for the services of both contractual partners is Karlsruhe.
2. German law shall apply exclusively. EU sales law is excluded.

§ 16 Miscellaneous

1. Should individual provisions of these General Terms and Conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. Instead, the invalid provision shall be replaced by a provision that comes closest to the intended purpose. The same shall apply in the event of incompleteness of the provisions as a whole.
2. No ancillary agreements have been made. Amendments to the contract shall only be effective if they are confirmed in writing.
3. The Customer may only assign his rights arising from a business relationship with the Company with the written consent of the Company. The Customer may only offset the purchase price claim against recognized or legally established counterclaims.

Version date: September 18, 2008