Terms and Conditions for punkt.de, LLC

§ 1 Applicability of the General Terms and Conditions

1. These General Terms and Conditions of Business and Delivery apply in addition to the General Provider Terms and Conditions to all products, deliveries, and services, as well as to all contracts that punkt.de enters into with business entities as defined in § 14 of the German Civil Code (BGB), in particular for supplementary deliveries of hardware or software or supplementary work or services. The customer’s general terms and conditions are expressly excluded from the contract, even if punkt.de does not expressly object to them. In the event that the customer does not wish to accept the following General Terms and Conditions of Business and Delivery, the customer must notify punkt.de of this in writing in advance.
2. Any deviating agreements in individual cases must be in writing to be valid.

§ 2 Nature and Scope of Services

The services provided by punkt.de are services of a non-material nature. Should a service, by its nature and character, be classified as a work-based service, § 9 and § 10 shall apply in addition.

§ 3 Order

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

§ 4 Terms of Payment and Prices

1. All invoices issued by punkt.de are due for payment without deduction within ten days of the invoice date. The date on which payment is received by punkt.de is decisive.
2. Invoices are generated electronically by punkt.de and can be downloaded digitally by the recipient. We would be happy to send you a paper invoice upon reimbursement of costs. Please notify us in writing if you wish to receive a paper invoice and agree in writing to cover the costs.
3. In the event of default, punkt.de is entitled to withhold further deliveries and services. If the customer is in default of payment, punkt.de is entitled to charge interest at a rate of 8% above the applicable base interest rate. We reserve the right to claim higher damages resulting from the default.
4. If the customer defaults on a payment in whole or in part, all claims to which punkt.de is entitled arising from the business relationship with the customer shall become due.
5. If the customer fails to pay a due amount for which a reminder has been issued within 10 days of receiving the reminder, punkt.de shall be entitled to terminate the contract for cause. The timepunkt deat which payment is received by punkt.de shall be decisive for determining whether the payment was made within the deadline.
6. All prices are exclusive of the value-added tax required by law. punkt.de is entitled to make partial deliveries.
7. The customer may only set off claims that are undisputed or have been legally established.

§ 5 Delivery, Services, and Shipping

1. All offers are subject to change without notice. Delivery is subject to availability.
2. If, after placing an order, the buyer requests changes or additions to the order, or if other circumstances arise that make it impossible for punkt.de to meet the performance deadline—even though 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 on its part or on the part of its suppliers, or due to problems on the part of the physical network operator, the general legal principles shall apply, provided that the customer may set a grace period of six weeks after one month has elapsed. If the failure to meet a binding delivery date is demonstrably attributable to mobilization, Krieg civil unrest, a strike, or a lockout, or to other circumstances for which punkt.de is not responsible under general legal principles, the delivery period shall be extended appropriately. The customer may withdraw from the contract if, after the extended deadline has expired, punkt.de fails to meet a reasonable grace period granted by the customer.
3. The withdrawal must be made in writing if punkt.de fails to fulfill its obligations within the grace period. If performance of the contract becomes wholly or partially impossible for punkt.de due to the aforementioned reasons, it shall be released from its obligation to deliver.
4. punkt.de shall only be deemed to be in default upon receipt of a written demand for payment, unless the law expressly stipulates that such a demand is unnecessary.
5. The costs for shipping and transport insurance shall generally be borne by the customer, whereby the choice of shipping route and method is at the sole discretion of punkt.de. The customer is obligated to inspect the goods immediately upon arrival and to report any visible shipping damage as well as any damage to the packaging to punkt.de in writing without delay. The same applies to hidden damage. If punkt.de forfeits its claims against the insurance company or the subcontractor due to the customer’s failure to fulfill this obligation, the customer shall be liable for all costs resulting from this breach of obligation. Risk passes 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, whether principal or incidental.
2. Pledging or transfer of ownership by way of security of the goods subject to retention of title is prohibited.
3. The customer is obligated to properly insure the items subject to punkt.de ’s retention of title (i.e., theft, fire, water damage, and low-voltage insurance) and to provide punkt.de with proof of such insurance upon request. In the event of a claim, the customer’s insurance claim shall be deemed assigned to punkt.de.
4. The customer is not authorized to dispose of the goods subject to retention of title.
5. In the event that the customer nevertheless sells the delivered goods and punkt.de approves such a sale, the customer assigns to punkt.de all claims against its buyers as of the conclusion of the contract. punkt.de accepts this offer. The customer is obligated to provide punkt.de with all information necessary to assert these rights and to provide the necessary cooperation.
6. In the event of attachments or seizures, the customer must immediately notify punkt.de in writing and must immediately inform third parties of punkt.de ’s retention of title in an appropriate manner.

§ 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. punkt.de holds the copyright in relation to the customer.
3. Unless the customer is expressly granted further rights of use in writing, the customer receives – the perpetual and non-exclusive right to use the relevant application, concept, or design on the customer’s computer and, if applicable, on the computers of the customer’s internet service provider, solely for the customer’s own purposes.
4. Reproduction and distribution are expressly prohibited.
5. Use by third parties is permitted only with the express written permission of punkt.de. This does not apply to persons acting as the customer’s agents in the course of the customer’s business operations.
6. To the extent that the customer acquires rights of use for third-party software from punkt.de, the granted right of use is governed by the respective license terms. In case of doubt, it does not exceed the scope specified in paragraph 3.
7. Any deviating agreements in individual cases must be in writing to be valid.

§ 8 Warranties

Warranties, in particular regarding the quality or durability of the goods and services provided by punkt.de, require explicit written confirmation from punkt.de.

§ 9 Warranty and Acceptance for Contract Work

1. punkt.de is liable for defects in work performed under a contract for services for a period of 12 months following acceptance of the work.
2. Upon completion of a delivery or service, punkt.de may require the customer to provide a written statement confirming that the delivery or service was performed in accordance with the contract (acceptance).
3. Acceptance may only be refused in the event of material deviations from the contract, in particular if the delivery or service exhibits material defects or defects that cannot be remedied.
4. Acceptance shall be deemed to have been declared if the customer pays the agreed fee without reservation, if the customer uses the delivery or service for more than four weeks without complaint, or if no written declaration of acceptance is received by punkt.de within two weeks of a request for such a declaration pursuant to § 9 No. 2. The date of receipt by punkt.de shall be decisive in this regard.
5. The customer is responsible for ensuring that the data protection requirements for the use of the delivery at the place of use are met. Failure to meet these data protection requirements does not entitle the customer to refuse acceptance.

§ 10 Special Provisions for Software

1. punkt.de notes that, given the current state of technology, it is not possible to create computer software that is completely free of errors.
2. The customer shall inspect standard software immediately upon delivery and notify the seller in writing of any obvious defects without delay.
3. If an error occurs in the software, the customer is obligated to report it in writing to punkt.de within two weeks. The written notice of defect must describe the defect and its manifestation in sufficient detail to allow for verification of the defect (e.g., submission of error messages) and to rule out the possibility of an operating error (e.g., description of the steps taken). If the customer is a merchant, the provisions of § 377 of the German Commercial Code (HGB) regarding the commercial law obligations to inspect and give notice of defects shall apply in addition, even if no training on the operation of the system was provided.
4. If the notice of defect proves to be justified, the customer shall set a reasonable deadline for punkt.de to provide subsequent performance. The customer shall inform punkt.de of the type of subsequent performance—repair of the delivered item or delivery of a new, defect-free item—that the customer desires. However, punkt.de is entitled to refuse the chosen form of rectification if it can only be carried out at disproportionate cost to the company and if the other form of rectification would not entail any significant disadvantages for the customer. punkt.de may also refuse remedial performance altogether if it can be carried out only at disproportionate cost to the company.
5. punkt.de is entitled to two attempts to remedy the same defect or a defect directly related to it within the time limit set by the customer. After the second unsuccessful attempt at remedy, the customer may rescind the contract or reduce the license fee. The right to withdraw from the contract or to reduce the license fee may be exercised as early as after the first unsuccessful attempt at subsequent performance if a second attempt within the set time limit cannot reasonably be expected of the customer. If rectification has been refused under the conditions set forth above, the customer is immediately entitled to the right to a reduction or to rescind the contract.
6. Withdrawal due to a minor defect is excluded.
7. If a defect occurs that is the result of an incorrect or outdated driver, the customer grants punkt.de the right to provide a functional driver within ten days of notification to punkt.de.
8. Incompatibilities between hardware and accessories entitle the customer to a replacement only if a defect in the delivered hardware can be established and no accessories from other manufacturers are compatible.
9. punkt.de is entitled, if rectifying the defect is actually impossible or unreasonable for economic reasons, to implement an alternative solution if this leads to a suitable resolution of the problem.
10. punkt.de is entitled to provide English-language manuals or integrated online help in lieu of printed manuals.
11. punkt.de makes no warranty that the software will meet the customer’s specific requirements or will be compatible with the customer’s programs or existing hardware.
12. If the customer has made a warranty claim against punkt.de and it turns out that either no defect exists or the alleged defect does not obligate punkt.de to provide warranty coverage, the customer shall reimburse punkt.de for all expenses incurred, provided that the customer is responsible for the claim against punkt.de due to gross negligence or willful misconduct.
13. Immediately following installation, defect rectification work, maintenance work, or other interventions by punkt.de on the IT system, the customer shall verify whether the data backup is still functional and document the result in writing. The customer shall ensure that a reliable, timely, and comprehensive data backup routine guarantees data protection.

§ 11 Limitation of Liability

1. punkt.de is liable for intentional acts and gross negligence in accordance with statutory provisions.
2. In cases of slight negligence, punkt.de is liable only if an obligation is breached whose fulfillment is essential for the proper performance of the contract, whose breach jeopardizes the achievement of the contract’s purpose, and on whose compliance the contracting party regularly relies (cardinal obligation) or in the event of default or impossibility of performance. Likewise, all ancillary obligations must be taken into account that, in the event of a culpable breach, could jeopardize the achievement of the purpose of the contract.
3. In the event of liability arising from slight negligence, such liability is limited to damages that are foreseeable or typical. This limitation of liability also applies in cases of liability arising from slight negligence where punkt.de was initially unable to perform. Liability for the absence of warranted characteristics due to fraudulent misrepresentation, for personal injury, and for legal defects under the Product Liability Act and the Federal Data Protection Act remains unaffected.
4. In the event of a claim against punkt.de under warranty or liability, the customer’s contributory negligence shall be taken into account appropriately, particularly in cases of insufficient error reporting or inadequate data backup. Inadequate data backup exists, in particular, if the customer has failed to take appropriate, state-of-the-art security measures to protect against external influences—in particular, computer viruses and other phenomena that could endanger individual data or an entire data set.

§ 12 Third-Party Products

1. If necessary, 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 contract shall apply.
2. punkt.de xml-ph-0000@deepl.internal 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 and conditions, including the third-party manufacturer’s or importer’s warranty provisions and license terms (in the case of software).
3. All orders for third-party products are non-cancellable, and the products cannot be returned to punkt.de.
4. punkt.de
   is not liable a) for delays in the delivery of third-party products b) for material defects and defects of title c) for the compatibility of products with third-party products d) for patent and copyright infringements e) for claims for damages relating to third-party products
   
   punkt.de
   
   
5. Unless otherwise agreed in a statement of work, punkt.de will, however, act as an intermediary between the customer and the third-party supplier with respect to claims arising during the statute of limitations period for rights related to defects.

§ 13 Evidence Clause and Burden of Proof

Data stored in electronic registers or otherwise in electronic form at punkt.de shall be deemed admissible evidence for verifying data transfers, contracts, and payments made between the parties.

§ 14 Terms of Payment

Unless otherwise agreed upon in an individual contract, the following applies:

1. Monthly fees are payable on a pro-rata basis for the remainder of the month, beginning on the day the service becomes operational. Thereafter, these fees are due monthly in advance by the 3rd business day of each month. If the fee is to be calculated for part of a calendar month, it shall be calculated for each day as 1/30 of the monthly fee.
2. Usage-based fees (traffic charges) are payable upon provision of the service.
3. If the fee is contingent upon invoicing by punkt.de and the customer does not participate in the direct debit program, the invoice amount is due no later than the 10th day after receipt of the invoice.

§ 15 Place of Performance and Jurisdiction

1. The place of performance for the services of both contracting parties is Karlsruhe.
2. German law applies exclusively. EU sales law is excluded.

§ 16 Miscellaneous

1. Should any provision 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. Rather, the invalid provision shall be replaced by a provision that most closely approximates the intended purpose. The same applies in the event that the provisions as a whole are incomplete.
2. No collateral agreements have been made. Additions to the contract are effective only if they are confirmed in writing.
3. The customer may assign its rights arising from a business relationship with the company only with the company’s written consent. The customer may set off claims against the purchase price only with counterclaims that have been acknowledged or legally established.

Version date: September 18, 2008