Terms and Conditions of the Company punkt.de GmbH

§1 Validity of terms and conditions

  1. These terms and conditions are valid in addition to the provider terms for all products, supplies and services, as well as for all contracts punkt.de closes with companies in terms of the §14 BGB, especially for additional deliveries of Hard- or Software or additional work performances or services. Terms and conditions of the customer are explicitly not subject matter of the contract and do not become part thereof, even if punkt.de does not explicitly object. In case that the customer does not want to accept the following business- and delivery-terms and conditions he/she has to inform punkt.de in writing.
  2. Individual changes to this terms and conditions, or to any contract, need to be affirmed in writing by both parties.

§2 Character and extend of services

The services delivered by punkt.de are considered attendances. If a service has to be categorised imperatively as a work performance because of its type and breadth, §9 and §10 will apply additionally.

§3 Order

  1. All offers of punkt.de are a non-committing offer to the customer and are subject to change without prior notice.
  2. punkt.de is entitled to accept an offer within seven calendar-days after receipt of the order by sending a confirmation of order note, or to decline an offer. In case of physical (postal) delivery of goods, the customer will only receive a confirmation of order upon request. The acceptance of an offer and the turning-down of an offer respectively my occur through letter post, email, or fax.

§4 Conditions of payment and prices

  1. All invoices have to be payed due net within ten days after the date of invoice. The timely receipt of payment to a bank account of punkt.de is determined by the actual date the due amount is credited by the bank.
  2. All invoices are generated digitally. If you need a paper version of an invoice, we are happy to send it, if you agree to cover all costs for printing and shipping the paper version. If you require a paper version, please tell us so in writing and agree to cover all costs for mailing this invoice.
  3. In the event of a delay of payment by the customer punkt.de is entitled to hold back any supplies and services until all open dues are paid. In case of a delay of payment by the customer, punkt.de is entitled to draw interests in the amount of 8% above the currently effective base interest rate. The right to claim compensation for higher damage caused by the payment delay is reserved.
  4. In case, the customer delays payments, partially or in whole, punkt.de is entitled to claim all due payments resulting from the contract/s.
  5. If the customer does not make a due payment within 10 days after receipt of a dunning notice, punkt.de will have the extraordinary right to terminate all services. The timely receipt of payment to a bank account of punkt.de is determined by the actual date the due amount is credited by the bank.
  6. All prices are subject to the required value added tax unless explicitely stated otherwise. punkt.de is entitled to make partial shipments.
  7. The customer may only charge up against undisputed valid or legally settled claims.

§5 Supply, service and transportation

  1. All offers are without engagement and subject to actual availability.
  2. If the customer requests a modification or a supplement to the order or if other circumstances beyond the control of punkt.de render punkt.de incapable to meet the agreed on delivery date, the date of delivery will shift for a reasonable period of time. If punkt.de is hindered in the timely performance of the contract, e.g. by interferences of purchase, fabrication or supply to punkt.de or its sub-supplier or by problems with the physical data-line operator, the general rules of law will apply; meaning: Upon an initial four weeks respite period the customer is entitled to set a final deadline of six weeks. If the delay of a binding date of delivery is caused by mobilization, war, disturbance, strike or lockout or by other circumstances punkt.de cannot be made responsible for, the delivery date will shift by an adequate time. The customer may step down from the contract, if he/she has offered punkt.de an appropriate respite period, and if the contract could not be fullfilled within this period.
  3. The withdrawal from the contract shall be in writting, if punkt.de does not manage to fullfil the contract within the respite period. If the fullfilment of the contract is rendered impossible impossible for punkt.de because of one of the above reasons, punkt.de will be exempt from the obligation of delivery.
  4. punkt.de will only be in default upon a written notice, unless the law explicitly renders such notice to be dispensable.
  5. The customer is responsible for all shipping and insurance charges. punkt.de may choose the dispatch route and the type of dispatch at punkt.de's own discretion. The customer is required inspect the product and packaging immediately upon delivery and inform punkt.de in writing about any recognizable damages to the product and packing which may result from shipping. The same is true for hidden damages. If the customer does not file a damage claim with punkt.de and if punkt.de in consequence is unable to transfer the claim to it's the insurance or the sub-supplier, the customer is liable for the full costs which result from that breach of responsibility. The risk is transferred to the customer as soon as the product leaves the factory or the storage of punkt.de.

§6 Reservation of proprietary rights

  1. All products remain property of punkt.de in all respects until the according invoice is paid in full by the customer.
  2. The pledging or chattel mortgages of goods subject to retention of title are not allowed.
  3. The customer is required to insure the products which are under the reservation of proprietary rights of punkt.de in due form (i.e. theft-, fire-, water-, and electronic equipment insurance), and to prove such insurance to punkt.de on demand. In case of damage the insurance claim of the customer is ceded to punkt.de.
  4. The customer must not dispose of products which are under the  reservation of proprietary rights of punkt.de.
  5. In case of an allowed reslae of the delivered item by the customer he/she transfers the title to insurance benefits to punkt.de at the time of signing of the contract. The customer is bound to supply punkt.de all information which are necessary for the enforceability of these rights and to adduce necessary participation tasks.
  6. In case of seizure, the customer has to inform punkt.de immediately in written form and has to advise third parties of the reservation of proprietary rights of punkt.de in a proper way.

§7 Rights

  1. All drafts, applications or designs punkt.de creates for the customer or delivered to the customer, particularly for the arrangement and the operation of websites, are copyrighted. The source code is property of punkt.de.
  2. In relation to the customer, the copyright is entitled to punkt.de.
  3. The customer gets the unlimited and not exclusive authorization to use the relevant application, the relevant draft or the relevant design on his/her computer and, as the case may be, the computer of his/her provider, only for his/her own purpose, unless he/she is granted extended rights of use explicitely and in written form.
  4. Duplication and sale are denied explicitely.
  5. The use by third parties is only allowed with an explicit written authorization by punkt.de. Persons or business units who act as assistant to the customer in his/her business concern ar enot considered to be third parties.
  6. If the customer gains the right to use for a third party software through punkt.de, the granted tight to use will be based upon the respective terms of the licence. In case of doubt it is not beyond the degree of paragraph 3.
  7. Differing agreements for individual scenarios need to be in writing.

§8 Guarantees

Guarantees need to be expilicitly confirmed by punkt.de in writing, especially guarantess about the property and the availability of goods and services by punkt.de.

§9 Warranty and acceptance of work performances

  1. punkt.de is liable for defects of contractual services within 12 month after acceptance of the work through the customer.
  2. Upon delivery of the service punkt.de may request a written statement on the successfull delivery of the service in accordance to the contract from the customer (Acceptance)
  3. The customer will only be entitled to decline the acceptance, if a fundamental contractual deviation exists, especially if the supply or the service has a fundamental defect which could not be remedied.
  4. The acceptance will also be considered to be given if the customer pays the fee without reservation, if he/she uses the product or the service longer than four weeks without complaint or if no letter of acceptance is issued within two weeks despite a request from punkt.de for such letter of acceptance according to §9 para.2. Relevant for this purpose is the date the letter of acceptance reaches the office of punkt.de.
  5. The customer is responsible to fulfill the applicable rules of the data privacy laws for the use of the supplied service at the location. The customer is not entitled to refuse the acceptance because the qualifications for the data privacy laws are missing.

§10 Special arrangements with software

  1. punkt.de hereby mentions the fact that it is virtually impossible, at the current state of the technology, to develop a completely faultless computer-software.
  2. The customer will check off-the-shelf software directly after delivery and will advise the seller of obvious failures immediately in written form.
  3. If a failure occures in the software the customer will be responsible to inform punkt.de in writing within two weeks. The customer has to detail the defect and its manification in the notice, so that an inspection of the defect is possible (e.g. presentation of the error message) and a handling error can be excluded (e.g. by indication of the steps taken to produce the failure ). If the customer is a trader the arrangements of §377 HGB for the duty of control and reproof of the business law will be valid, even if a briefing/instruction for the system was not issued.

§11 Limit of liability 

  1. According to the law, punkt.de is liable in case of willful intent and gross negligence.
  2. In case of ordinary negligence punkt.de will only be liable if an obligation is violated, whose performance and delivery was mandatory for the correct accomplishment of the contract in the first place, whose neglect endangers the purpose of the contract and if the fullfillment of the obligation can constantly and reasonably be expected by the customer (cardinal obligation). Also to be consider are all collateral duties, which in case of intentional breach of duty, endanger the achievement of the purpose of the contract.
  3. In case of liability caused by minor negligence, the liability is limited to damages which are predictable and typical, respectively. This limitation to the liability caused by minor negligence is also valid in case of an initial incapability of punkt.de. Liability due to the failure or lack of guaranteed features, because of malice, to personal injury, to defects of title according to the product liability act and the federal data protection act, stay intact.
  4. In case of filing a claim against punkt.de because of guarantee or liability, a contributory negligence of the customer's behalf has to be taken into proper account, especially in case of deficient problem reports or deficient data protection. Deficient data protection is present especially - but not exclusively - in case that the customer failed to make state of the art arrangements against interference from the outside, especially against computer viruses and other phenomena, which can endanger individual data or the whole database.

§12 Products of third parties

  1. If required, the customer can ask for products of third parties and punkt.de can agree to provide  such products in conjunction with the services punkt.de accomplished. In this case, the regulations of that contract are valid.
  2. punkt.de will supply the requested products as a representative with limited liability from a third distributor including the propagation of regulations for the right with defects or regulations of licence (in case of software) of the third producer or importer to the customer.
  3. All orders of products of thirds can not be cancelled and the customer can not make restitution of the products to punkt.de.
  4. punkt.de is not liable
    1. for the delay which can appear during the supply of products of thirds and
    2. for material defect or defect of title.
    3. for patent or copyright infringement concerning products of thirds.
    If not agreed differently in the service description, punkt. de will act as a juncture between customer and third distributor in terms of requirements of rights and defects occure from the limitation period.

§13 Article of proof and burden of proof

Data which are saved in the electronic register or in different electronic form at punkt.de are considered to be evidence for the dedecation of data transfer, contracts  and performed payments between the parties.

§14 Conditions of payment

If no individual contractual agreements were made, following would be valid:

  1. Monthly fees are to pay pro rata incipient with the day of the operable allocation for the rest of the month. After that such fees has to be payed monthly in advance by the 3 workday. If the monthly fees are to pay only for a part of a calendar month, there will be calculated 1/30 of the monthly fee for each day.
  2. Usage-dependet fees (fees for traffic) are to pay after the service provision.
  3. If the fees depend on the issuing of the invoice by punkt.de and if the customer does not take part on the debit memo procedure, the amount invoiced will have to be payed by the 10. day after receiving the invoice.

§15 Place of performance and jurisdiction

  1. Place of performance for the services of both contractual partners is Karlsruhe.
  2. Only the laws of the Federal Republic of Germany are valid. The convention of the EU on contracts for the international sale of goods is excluded.

§16 Miscellaneous

  1. If individual regulations of these terms and conditions are, or get partly or totally ineffective, the validity of the other regulations will not be affected. Those thing, which comes clostest to the volitional purpose of the inane regulation, supersede it. The same is valid in case of incompleteness of the agreed regulations.
  2. Additional agreements are not concerted. Amendments to the contract will only be valid if they are confirmed in written form.
  3. The customer can only assign his/her rights, which he/she has from the business connection with a company, with a written acceptance from the company. A charging against the claim of purchase price will only be possible with a accepted or valid counter claim.

State of version: 16. Juli 2008