GTC

General Terms and Conditions of Sale and Delivery of Snom Technology GmbH

1. Scope of application
   1. These General Terms and Conditions of Sale and Delivery apply exclusively to the deliveries and services as well as to the information, advice and repairs provided by Snom Technology GmbH. Snom Technology GmbH explicitly objects to customers' General Terms and Conditions of Business and Purchase.
   2. Customers' Terms and Conditions shall only become an integral part of a contract if and to the extent that Snom Technology GmbH explicitly recognises same in writing. The General Terms and Conditions of Sale and Delivery shall also apply exclusively if Snom Technology GmbH undertakes deliveries and provides services without reservation in the knowledge of these opposing or deviating customers' Terms and Conditions.
   3. Any agreements made in deviation to these Terms and Conditions may only be made in writing and shall only apply to a particular contract and not to subsequent contracts unless explicitly agreed to otherwise. This shall also apply to an amendment of this clause.
       
2. Offer and contract conclusion
   1. Snom Technology GmbH's offers are subject to change and are non-binding. Any supply contract or other contract shall only be formed once Snom Technology GmbH has confirmed the customer's order or other order in writing (order confirmation) or delivered the goods or provided the service.
   2. Snom Technology GmbH shall not be responsible for any errors that may arise in the order and/or the documents sent in due to unclear or incomplete information. The customer shall bear the additional costs incurred thereby.
       
3. Prices and payment terms
   1. The prices applicable on the date of order shall apply in accordance with Snom Technology GmbH's price list valid at this time unless a different price is explicitly agreed in writing.
   2. Unless otherwise agreed to in writing, the prices quoted by us apply ex works or the delivery warehouse and are deemed to be net prices excluding the applicable statutory value added tax. The actual shipping and packaging costs incurred shall be additionally charged.
   3. Snom Technology GmbH shall only supply first-time deliveries on the basis of cash on delivery or bank transfer (including credit card) unless expressly agreed to otherwise in writing.
   4. Invoices are payable within 8 days from date of invoice (without deduction) unless stated otherwise in the order confirmation. If payments are made late, Snom Technology GmbH shall only make further deliveries on a cash on delivery or cash in advance basis. Such an arrangement shall not require special notification and shall be made at the choice of Snom Technology GmbH.
   5. The customer shall be in payment default if payment is not made 30 days from date of delivery or receipt of invoice. In all other respects, the legal regulations regarding entry of default (§ 286 of the German Civil Code (BGB)) shall apply. 
   6. Discounts may only be deducted by separate written agreement. Agreed discounts shall not be granted if the customer is in arrears with payment for prior deliveries.
   7. The customer is only entitled to a right of setoff if its counterclaims are uncontested or legally determined. The customer is only entitled to a right of retention if counterperformance has not yet been provided by Snom Technology GmbH (§ 320 (1) BGB) and the claim to the counterperformance is uncontested or legally determined. 
   8. Should the customer fail to adhere to the agreed payment terms, violate other contractual agreements or if we become aware of issues after order acceptance that cast justifiable doubt over the creditworthiness of the customer, Snom Technology GmbH shall be entitled to request full payment or appropriate collateral prior to delivery and to withdraw from the contract or request damage compensation after fruitless expiry of a period of grace. A negative report from a bank, credit bureau or a company that has a business relationship with the customer, issued from the view of a prudent businessman, shall be regarded as proof of a significant deterioration of financial position. If delivery has already been made, the outstanding invoices shall become due for payment immediately irrespective of agreed payment terms. In addition, Snom Technology GmbH may prohibit resale of the delivered goods subject to reservation of title, request their return or transfer of direct ownership at the cost of the customer and, if applicable, revoke any collection authorisations issued.
       
4. Service and delivery deadlines, delay and subsequent delivery
   1. Service and delivery deadlines provided by Snom Technology GmbH shall only be deemed to be approximate unless a fixed period or a fixed date has been explicitly promised or agreed. Agreed periods shall start on the date of order confirmation, however, not before receipt of any agreed advance payments and not before unequivocal clarification of all the order details. They shall only be regarded as complied with on notification of readiness for shipment if the goods cannot be shipped in time without this being the fault of Snom Technology GmbH.
   2. Notwithstanding the rights of Snom Technology GmbH arising from a customer's default of the obligations arising from the contract, agreed periods and deadlines shall extend by the length of time the customer is in default in respect of Snom Technology GmbH. 
   3. The customer may set an appropriate period for Snom Technology GmbH for performance for delivery periods and dates that are not described expressly as fixed in the order confirmation. Snom Technology GmbH can only enter into default on expiry of this subsequent period unless Snom Technology GmbH has seriously and finally refused delivery or the immediate entry of default is justified on particular grounds with due consideration given to the interests of both parties.
   4. If future and uncertain events that do not normally occur and which were not foreseeable on contract conclusion make the delivery or service provision significantly more difficult and the circumstances are not merely temporary, Snom Technology GmbH shall be entitled to withdraw from the contract. In the event of circumstances that are not merely temporary, Snom Technology GmbH shall be entitled to extend the service provision and delivery periods by the length of the time of these circumstances plus a reasonable start-up period. Snom Technology GmbH shall inform the customer without delay of such circumstances affecting performance. 
   5. The right to make construction and/or other changes of form that are based on technological improvements and/or legislative requirements shall be reserved during the delivery period if the item of supply does not change significantly and the changes are reasonable for the customer.
   6. Snom Technology GmbH shall be entitled to make partial deliveries if
      1. the delivery of the remainder of the ordered goods is ensured,
      2. the partial delivery can be used by the customer in the context of the contractual intended purpose, and 
      3. the customer does not incur a significant additional expense or additional costs thereby.
      4. Each partial delivery may be invoiced by us separately. 
          
5. Extensive reservation of title
   1. Snom Technology GmbH reserves ownership of the delivered goods (goods subject to reservation of title) until all present and future claims arising from the existing business relationships with the customer (secured receivables) are settled. This also applies if payments are made on specially designated receivables. 
   2. The customer is entitled to sell the goods subject to reservation of title in the ordinary course of business. The customer is not entitled to dispose of the goods subject to reservation of title otherwise.
   3. The customer herewith assigns to us all the receivables, including all the ancillary rights, accruing to same from the resale of the goods subject to reservation of title. The customer may collect the receivables assigned to Snom Technology GmbH for its own account in its own name on behalf of Snom Technology GmbH as long as Snom Technology GmbH does not withdraw this authorisation. Snom Technology GmbH's right to collect these receivables directly shall not be affected thereby. However, Snom Technology GmbH shall not claim the receivables directly and not revoke the collection authorisation as long as the customer meets its payment obligations properly. Insofar as the customer does not properly fulfil its payment obligations, Snom Technology GmbH may request the customer to disclose to Snom Technology GmbH the assigned receivables and the respective debtors, notify the respective debtors of the assignment and surrender all the documents to Snom Technology GmbH and provide all the information that Snom Technology GmbH requires to enforce the claims. Subsection 3 (8) remains unaffected.
   4. Snom Technology GmbH must be informed without delay in the event of attachments or other third-party interventions. 
   5. Upon request by the customer, Snom Technology GmbH shall be obliged to release the collateral if their realisable value exceeds the amount of the secured receivables by more than 20%. Snom Technology GmbH reserves the right to select the collateral to be released. 
   6. In the event of payment default or other contractual breach by the customer or in the event that circumstances become known that cast justified doubt over the creditworthiness of the customer, Snom Technology GmbH shall be entitled to withdraw from the contract in accordance with the legal regulations and to request surrender of the goods subject to reservation of title based on the reservation of title and the withdrawal. If the customer fails to pay the purchase price due, Snom Technology GmbH may only assert these rights if it has set an appropriate period of grace in advance for the customer to pay and payment is not received or such a period of grace is not necessary in accordance with the law.
       
6. Warranty and liability
   1. For goods that are sold as downgraded or used goods, the customer shall have no claims in respect of any defects with the exception of damage claims pursuant to subsection 6 (6) of these Terms and Conditions and claims to reimbursement of expenses instead of damage compensation. § 444 BGB [German Civil Code] remains unaffected. 
   2. The customer undertakes to carefully examine the delivered goods for completeness and proper condition – even if samples were sent prior – without delay after delivery to same or a third person designated by same. With respect to apparent or obvious defects that would have been identifiable if a careful examination had taken place without delay, the goods shall be deemed to be approved by the customer if a written notification of defects is not received by Snom Technology GmbH within seven working days after delivery. If the defect is not identifiable during a proper examination, the goods shall be deemed to be approved if a written notification of defects is not received by Snom Technology GmbH within seven working days after discovery thereof. External sales staff of Snom Technology GmbH are not entitled to accept notifications of defects. 
   3. The customer shall give Snom Technology GmbH an opportunity to review the notification of the defect. If the customer refuses to do so, Snom Technology GmbH shall also be released from any liability for defects.
   4. Where notifications of defects are justified, Snom Technology GmbH shall, in the event of defects in the supplied goods, meet its warranty obligations by means of subsequent improvement or replacement delivery at its choice. Should the subsequent improvement or replacement delivery fail, the customer may request a reduction in the purchase price or withdraw from the contract if the defect significantly compromises the contractual use of the goods.
   5. The customer is responsible for regularly backing up its data.
   6. With the exception of the liability in accordance with the product liability laws and due to injury to life, body or health, Snom Technology GmbH's liability is limited or excluded as follows, in addition to the liability limitations mentioned in subsection 6 (1) to (4): 
      In the event of negligence, Snom Technology GmbH's liability shall be limited to compensation for the typically foreseeable damages. However, in the event of slight negligence, Snom Technology GmbH shall only be liable if it has violated an obligation which makes the performance of a proper execution of the contract at all possible, in particular the provision of defect-free goods, and observance of which the customer may rely on.
      The aforementioned limitations shall also apply in favour of the statutory representatives and vicarious agents of Snom Technology GmbH if claims are asserted directly against same.
   7. The goods shall be returned in good order and in the original packaging (complete, undamaged original packaging, operating manual, full packaging material, etc). Goods returned postage paid shall not be accepted and shall be returned at the cost of the sender. The customer shall be responsible for substantiating the freight costs. They shall only be reimbursed in the case of a justified defect notification.
   8. Claims based on a defect shall lapse one year after delivery of the goods, in deviation to § 438 (1) no. 3 BGB. Damage claims and claims for defects in the event of a fraudulently concealed defect are excepted therefrom.
   9.  
   10. If Snom Technology GmbH has indicated a new software release and its download availability to the customer or if Snom Technology GmbH has provided this new software release to the customer, Snom Technology GmbH is obligated to provide same to its customers in the context of subsequent performance due to a defect in a prior software release or install same on the devices that are the subject matter of the defect warranty if this software release has at least the same functionalities as the prior software release. Customers that act as intermediaries undertake to bind their buyers to the obligations under this clause to the same extent.
        
7. Reimbursement of additional expenses in the event of non-acceptance
   If the customer is, in principle, obligated to compensate Snom Technology GmbH for damages as the customer does not accept the goods, Snom Technology GmbH shall be entitled to charge damages at a flat rate of X (please insert figure, must be between 5 and 10) % of the net value of the goods plus any transport costs already incurred. The damage compensation must be higher or lower if Snom Technology GmbH proves higher or lower damages to the customer.
    
8. Amendments
   Snom Technology GmbH is authorised to change these General Terms and Conditions of Sale and Delivery at any time. Snom Technology GmbH shall send the amended Terms and Conditions to the customer two months before their entry into force. Any amendments shall become effective with the consent of the customer. The customer's consent shall be deemed to be given if the customer does not indicate its objection thereto prior to the date of the effectiveness of the amendment. Snom Technology GmbH shall explicitly point out this deemed approval to the customer by sending the amended General Terms and Conditions of Sale and Delivery to the customer.
    
9. Intellectual property rights and copyright
   1. The customer shall recognise the patent rights and the other intellectual rights and copyright in the goods sold by Snom Technology GmbH. In particular, the customer is prohibited from undertaking any duplication, reproduction without authorisation, unfair imitation and trade in such reproduced, imitated or duplicated goods over and above the contractual purpose. 
   2. Reverse engineering or de-compiling of the computer programs developed by us ("reverse engineering") is prohibited without our written consent unless these actions are essential to obtain the required information to ensure the interoperability of the software with an independently created computer program and the customer has not received this information from us within an appropriate period of time despite having requested same in writing.
       
10. Place of performance, place of jurisdiction
    The place of performance of all obligations arising from this agreement is Berlin. If the customer is a businessman, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for any disputes arising from this agreement shall be the business premises of Snom Technology GmbH, Berlin (Germany). However, Snom Technology GmbH is entitled to file charges at the general place of jurisdiction of the customer.
     
11. Export, delivery to customers abroad
    1. This agreement is subject to the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). Any requirements and effects of the reservation of title in accordance with subsection 5 are subject to the law applicable at the respective warehousing location of the item to the extent that the choice of law of German law in accordance therewith is not permitted or ineffective. 
    2. Exporting the goods of Snom Technology GmbH to certain countries may violate German export law and/or statutory export bans. Snom Technology GmbH herewith advises the customer that the customer is responsible for reviewing the admissibility of the further delivery under its own responsibility. The customer undertakes to hold Snom Technology GmbH harmless of damages of any kind arising from any prohibited further delivery that the customer is responsible for.
12. Final provisions
    1. Declarations sent by fax or e-mail shall also suffice to comply with the written form requirement on conclusion or execution of the agreements concluded between the customer and Snom Technology GmbH.
    2. Unless agreed to otherwise, the transfer of the rights and duties arising from this agreement by the customer to a third party shall require the prior written consent of Snom Technology GmbH. Snom Technology GmbH may only withhold this consent for good cause.
        
13. Severability clause
    1. Should any provision of these Terms and Conditions be or become invalid, this shall not affect the validity of all the other provisions. To the extent the contract or these General Terms and Conditions of Sale and Delivery contain any gaps, such a gap shall be filled by a legally valid regulation that the contractual parties would have agreed to in accordance with the economic objectives of the contract and the purpose of these Terms and Conditions had they been aware of the gap.  
    2. Should there be any doubt, the German text of the General Terms and Conditions of Sale and Delivery shall prevail.
        

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