General Terms and Conditions & General Terms and Conditions for Software Rental

1. General Terms and Conditions

2. General Terms and Conditions for Software Rental

General Terms and Conditions

1. Scope of application

innovaphone will make deliveries exclusively on the basis of the following Standard Terms and Conditions and the provisions in the respective applicable distributor price list, unless otherwise agreed upon in writing. In addition, the Company refers to the terms of the licences by the manufacturers that are delivered together with the products as agreed in the contract (the Products). Deviating terms and conditions by the customer are not valid, unless confirmed in writing by innovaphone. The same applies to any modifications and amendments to these Standard Terms and Conditions. Oral commitments and side agreements require written confirmation by innovaphone.

2. Deliveries and services

2.1. Any documents like illustrations, drawings and weight specifications are not deemed contractually agreed upon, unless stated by innovaphone expressly to be contractually binding.

2.2. innovaphone is entitled to deliver Products that differ from the customer’s order, if the change in product does not affect the technical performance and the functionality and - if a specific design had been agreed upon – does not refer to the appearance of the Products.

2.3. The Company reserves the right to make and invoice partial deliveries, unless otherwise agreed upon in writing or unless the customer proves that partial delivery would be against his interests.

2.4. Delivery dates agreed upon are deemed met, if the Products were handed over to the carrier by the agreed delivery date, unless otherwise expressly agreed upon in writing. If the shipment of goods that are ready for dispatch is delayed for reasons for which innovaphone is not responsible, the Products may be put into storage at the customer’s cost and risk.

2.5. Delivery dates are agreed upon on the basis of innovaphone’s expected ability to perform with the proviso that there are no unforeseen circumstances or impediments, regardless of whether these occur onthe part of innovaphone or the manufacturer, such as force majeure, governmental measures, non-issuance of official approvals, industrial actions of all types, sabotage, raw materials shortages or delayed delivery of materials for which the Company is not responsible. These types of occurrences extend the delivery period accordingly. This also applies if they occur while a shipment is already delayed. If delivery by innovaphone is delayed, the customer is entitled to rescind the contract fully or partially after expiry of an appropriate grace period that was set in writing. If innovaphone fails to meet an appropriate grace period set by the customer, the customer is entitled to claim compensation for any damage suffered due to the delay in the maximum amount of 0.5 % per completed week (in total limited to a maximum of 5 %) of the value of the part of the total delivery that could not be put into operation for the intended purpose due to delayed completion of individual parts. The damages to be paid by innovaphone pursuant to this shall be offset against the final invoice. Any claims for damages beyond this scope on the part of the customer for delayed delivery are excluded. This also applies to cases, when a grace period set has expired.

2.6. Any potential taking out of transport insurance or taking over of transport costs has no effect on the passing of risk.

3. Cancellation and refusal to accept the goods

3.1. If the customer cancels an order confirmed by innovaphone fully or partially without being entitled to do so or if the customer refuses to accept ordered goods fully or partially without authorization despite being granted a grace period of 10 days, innovaphone is entitled to rescind the contract without setting a further grace period and regardless of the requirements pursuant to Section 323 (2) BGB [German Civil Code] and to demand from the customer lump-sum damages amounting to 30% of the order value of the cancelled or refused goods. The customer has the right to prove that the actual damage incurred by innovaphone is significantly lower than the lump-sum claim for damages. Alternatively, innovaphone shall also be entitled to calculate the actual damage incurred due to the customer’s cancellation or refusal to accept. Any further rights on the part of innovaphone are not excluded by the provision above.

3.2. Agreements concerning the change of delivery dates require written form. If the delivery date is changed by more than four weeks at the customer’s request, innovaphone shall be entitled to claim an advance payment from the customer amounting to 50% of the order value.

4. Acceptance and passing of risk

4.1. Immediately upon receipt of the goods, the customer shall inspect the goods against the invoice for completeness and compliance. Items that are to be integrated in other items must be examined prior to assembly. Otherwise, the inspection is deemed to have not been undertaken immediately and is thus deemed to be too late. If the customer fails to make notification of defects within a period of 8 days following receipt of the delivery, the goods are deemed accepted. Notifications of defect must contain an exact description of the defect they refer to. This obligation is also binding for the customer if the goods are intended for resale. Obvious defects must be declared vis-à-vis the carrier immediately upon handover from the forwarder, post, rail etc. If the goods are collected personally, the customer shall immediately inspect the goods for obvious defects upon handover. In case of hidden defects, the aforementioned period commences from the point in time when these first become apparent. Notifications of defect are no longer accepted after expiry of said period.

4.2. Immaterial defects that do not impair the functionality of the delivery object do not entitle the customer to refuse acceptance.

4.3. The risk passes to the customer upon handover of the Products to the carrier, its agents or other persons appointed by innovaphone, but at the latest upon direct handover of the Products to the customer or its agents. This provision shall also apply in cases of return shipments after rectification of defects or whenever paid services are rendered. Place of subsequent performance is deemed to be the registered office of innovaphone.

5. Prices and payment conditions

5.1. The prices stated in the respective applicable distributor price list are ex warehouse Sindelfingen. The customer will additionally be invoiced value-added tax and other statutory duties in the country of delivery as well as packaging, cost of transport and transport insurance.

5.2. Payments are due within 30 days after issuing of the invoice without any deductions. The invoice is issued upon delivery. Acceptance of bills of exchange and cheques is subject to the condition that said cheque or bill of exchange is honoured. In cases of failure to meet payment dates, innovaphone shall, without having to issue a warning letter, be entitled to claim default interests 8% above the applicable base interest rate. The right to claim further damages resulting from default remains unaffected therefrom.

5.3. Notwithstanding any deviating provisions by the customer, innovaphone shall be entitled to credit payments against a customer’s older debts first. If costs and interests have already been incurred due to the delay, innovaphone shall be entitled to credit the payment first against the costs, then against the interests and finally against the principal invoice amount.

5.4. Any offsetting or assertion of a right of retention on the part of the customer based on counter claims that are not acknowledged by innovaphone or which are not res judicata shall be excluded.

5.5. If the customer fails to meet the payment date stated in item 5.2. or any other payment date agreed upon separately in writing with innovaphone, innovaphone shall be entitled to make future deliveries conditional upon contemporaneous payment in cash or request the customer to make advance payments or provide security. Any delays in payment on the part of the customer further have the consequence that all payment claims of innovaphone resulting from the business relationship with the customer, for which innovaphone accepted bills for collection or agreed to payment by instalments, will fall due immediately.

6. Retention of title

6.1. The goods delivered by innovaphone to the customer shall remain the property of innovaphone until all claims of innovaphone against the customer resulting from the business relationship have been met in full.

6.2. The customer is revocably authorized to pass on the goods that are subject to retention of title in the normal course of business, but not to pledge these or provide them as any type of security. If third parties take hold of the goods subject to retention of title, the customer shall immediately notify such third party that these are the property of innovaphone and inform innovaphone thereof immediately. In case of resale of said goods to third parties, the customer is responsible for ensuring that the third party observes the rights of innovaphone.

6.3. If the goods subject to retention of title are mixed or combined with goods not in the ownership of innovaphone, innovaphone shall acquire co-ownership in relation of the invoice value of the goods subject to retention of title to the other goods. Any alterations to and processing of the goods subject to retention of title is performed on behalf of innovaphone as the manufacturer in terms of Section 950 BGB, without entailing any obligation for innovaphone. Innovaphone obtains co-ownership in the processed goods in terms of the provision above.

6.4. In case of delayed payment or illiquidity on the part of the customer, innovaphone is authorized to access the customer’s business premises to assert its right of retention relating to the goods subject to such title and take hold of those goods without this requiring setting of a further grace period or meeting any of the other requirements defined in Section 323 (2) BGB, unless the amount of the delayed payment is immaterial.

6.5. If innovaphone secures goods at the customer’s or third party premises to assert its retention of title, this does not constitute contract rescission.

6.6. The customer assigns his claims in the amount of the respective invoice value resulting from passing on the goods subject to retention of title to innovaphone in advance at the time the order is placed. The customer is authorised and obliged to collect these claims in the course of normal business. At innovaphone’s request, the customer shall identify the assigned claims. In order to secure its payment claims, innovaphone may disclose this assignment if the customer delays payment or becomes illiquid.

6.7. If the value of the securities exceeds innovaphone’s payment claims by more than 20%, innovaphone shall release the part of the securities exceeding that value upon the customer’s request.

6.8. Objects that are delivered for test and presentation purposes, remain the property of innovaphone. Use thereof is subject to a separate agreement with innovaphone. Following expiry of the period agreed upon for testing and presentation or at innovaphone’s request if such period was not agreed upon, the customer shall take out transport insurance and return the test or presentation devices to innovaphone at his own cost. If the customer delays return of the devices for more than 14 days, innovaphone shall be entitled to request compensation for the use thereof in the amount of 2% of the list price of the device for each month of delayed return that has commenced. This does not exclude further claims on the part of innovaphone.

7. Warranty

7.1. Any information provided by innovaphone regarding the products and services is merely information on the nature of the products, unless innovaphone expressly warrants or guarantees certain characteristics of the product or the services. Any technical specifications and descriptions of the products in the product information leaflet alone do not represent a promise regarding certain characteristics or a guarantee in this respect. Specific characteristics are not deemed promised or guaranteed, unless the respective specifications are confirmed to be guaranteed characteristics by innovaphone in writing.

7.2. The parties are aware of the fact that errors in software cannot be excluded for all scopes of application for technical reasons. innovaphone does therefore not guarantee that the functions of the program will meet the customer’s requirements or are compatible with the selection made by the customer.

7.3. Defects and damage caused by the following reasons in particular are excluded from warranty: operational wear and tear and loss in value from normal use / improper use, operating errors and negligent behaviour on the part of the customer / operation with the wrong type of electricity or voltage and connection to unsuitable electricity sources / fire, lightning, explosion or grid-related overvoltage / dampness of all types / wrong or faulty program, software and/or processing data or consumables, unless the customer is able to prove that these circumstances did not cause the defect in question. The warranty also expires, if the serial number, model name or similar labels that serve to identify the product have been removed or have been obliterated.

7.4. These warranty claims against innovaphone commence upon handover of the object and become time-barred within a period of 12 months. They are not transferable. If the customer is a consumer in terms of Section 13 BGB or if another customer in the delivery chain is such a consumer, the customer’s rights pursuant to Section 478 BGB are not affected by the aforementioned provision. Notwithstanding the aforesaid, innovaphone passes any additional or further-reaching warranties or guarantees by the manufacturer on to the customer in full without entering into any obligation of its own in this respect.

7.5. In warranty cases, innovaphone will at its own discretion deliver subsequent performance (rectification of defect or replacement) itself or through its vicarious agents. Replaced parts become the property of innovaphone. If innovaphone refuses to rectify defects or fails to remove the defect within 30 days, the customer is entitled to, at its own discretion, request either rescission of contract or appropriate reduction of the purchase price. Further claims and other claims than those stated above, particularly compensation for damage that does not pertain to the delivery object directly or the ordering party’s legal interests, such as lost profit or other economic losses, are excluded, unless innovaphone acted with intent or gross negligence, fraudulently concealed the defect that caused the damage or warranted the respective characteristics of the goods. This limitation of liability does not apply in cases of injuries to life, limb or health due to breach of obligation.

7.6. In cases of subsequent performance innovaphone shall bear all transport, toll, labour and materials costs associated therewith. All other costs associated with the delivery of replacement, particularly insurance, packaging, subsistence and accommodation as well as storage costs shall be borne by the customer.

7.7. If the examination of a notification of defects shows that no warranty case is present, innovaphone is entitled to request reimbursement of its expenses.

7.8. No warranty whatsoever is assumed for the delivery of demonstration devices or used objects. If the customer is a consumer, the warranty period for used objects is one year as from handover thereof. Any claims for damages are excluded. The aforementioned warranty limitations do not apply, if and to the extent that innovaphone acted with intent or gross negligence, fraudulently concealed the defect that caused the damage or warranted the respective characteristics of the goods. This limitation of liability does not apply either in cases of injuries to life, limb or health due to breach of obligation.

8. Conditions for the guarantee extension

8.1. The warranty period of 12 months as per the law and our Standard Terms and Conditions (item 7) begins upon receipt of the device. By purchasing a guarantee extension, the period during which innovaphone repairs failures and damage to the device in accordance with the following regulations can be extended by up to 4 years.

8.2. The guarantee extension can always be acquired with the purchase of the device and, whenever possible for individual devices, within 12 months after receipt of the device. The guarantee extension has a term of 1, 2, 3 or 4 years. The prices quoted refer to one year of extension and must be multiplied by the number of years for which the guarantee extension was acquired. The guarantee extension may only be acquired once for each device. Thus it is not possible to first acquire a one-year extension and then later a two-year extension for the same device.

8.3. The guarantee extension is issued in the form of an activation licence, which must be immediately bound to the serial number of the device in question on the https://my.innovaphone.com licencing portal. In the case of a guarantee extension covering multiple years, all guarantee extensions must be used simultaneously.

8.4. The guarantee period begins 12 months after the device was received. It ends when the acquired guarantee extension expires.

If a device is repaired or exchanged during the guarantee period, the new guarantee for this device is now at least 12 months even if the guarantee extension expires sooner. Once a guarantee extension expires, you may not enter into a new guarantee period.

8.5. During the guarantee period, damage and failure of the device shall be repaired provided that a guarantee exclusion as per item 7 does not apply. The guarantee service is provided at innovaphone’s discretion by repairing or replacing the device. innovaphone reserves the right to replace devices by providing new or as-new devices or or new models. Parts or devices that have been replaced become the property of innovaphone.

During the guarantee period, all other claims except for repair and exchange are excluded provided that innovaphone is not liable as per mandatory statutory provisions. Provided that mandatory legal provisions do not provide otherwise, innovaphone’s liability shall always be limited to the purchase price of the device.

8.6. The following circumstances are excluded from the guarantee:

  • regular maintenance and repair caused by normal wear and tear
  • consumables and components that are expected to require replacement during the useful life of a device
  • damage and defects caused by improper use
  • damage caused by repair work carried out by unauthorised third parties
  • damage resulting from negligence or wilful conduct
  • damage caused by accidents, fire, liquids, chemicals, other substances, floods, vibrations, excessive heat, inadequate ventilation, voltage fluctuations, excessive or improper supply or mains voltage, radiation, electrostatic discharges such as lightning, external force and impact.

8.7. Guarantee claims may only be asserted against the Seller of the device, who will then forward the guarantee claim and the device to innovaphone. The Seller shall charge the Buyer a reasonable handling and inspection fee if the inspection of the device shows that there is no guarantee claim or that the device functions faultlessly.

9. Liability

9.1. innovaphone’s liability resulting from warranty is governed by item 7. Unless otherwise provided for by the following provisions, any further claims on the part of the customers, irrespective of the legal grounds, are excluded. innovaphone thus assumes no liability for damage that does not refer to the delivery object itself and, in particular, innovaphone assumes no liability for lost profit or other economic losses on the part of the customer. The obligation of innovaphone to provide replacement is in any case limited to the damage foreseeable at the time the contract was concluded.

9.2. This release from liability does not apply, if material contractual duties were breached or if the damage was caused by grossly negligent or intentional breach of duties on the part of innovaphone or its vicarious agents. The aforementioned liability exclusions and limitations do not apply either to claims pursuant to the German Product Liability Act (ProdHaftG) or damage resulting from injuries to life, limb or health due to breach of obligations. As far as liability by innovaphone is excluded or limited, this shall also apply to the personal liability of its employees, officers, representatives and vicarious agents.

 

10. Export and import permits

10.1. The products and the technical knowhow delivered by innovaphone are intended for use in the delivery country agreed with the customer and are intended to stay there. Re-export of Products, either individually or integrated into a system, may be subject to official permits for the customer and is subject to the regulations on foreign trade by the Federal Republic of Germany or any other delivery country agreed upon with the customer. The customer shall enquire about these regulations himself. According to German regulations, such enquiries are to be addressed to Bundesamt für Wirtschaft, 65760 Eschborn/Ts 1; according to US regulations to the US-Department of Commerce, Office of Export Administration, Washington, D.C. 20230.  Irrespective of whether the customer states the final place of destination for the delivered Products, the customer himself is responsible for obtaining any approvals required from the respective competent foreign trade authorities before exporting such products.

10.2. Any delivery of Products to third parties by the customer, with or without innovaphone’s knowledge, requires transfer of the export permit conditions at the same time. The customer is liable for proper observance of these conditions vis-à-vis innovaphone.

 

11. General provisions

11.1. The customer shall not be entitled to assign its claims under the contract.

11.2. If the customer is a full merchant, the following shall apply: place of performance and place of jurisdiction, also for actions in connection with cheques, bills of exchange and documents, is Sindelfingen.

11.3. These Standard Terms and Conditions are subject to the statutory provisions valid in the Federal Republic of Germany. The Uniform Law on the International Sale of Goods (EKG ), the Uniform Law on the Conclusion of International Purchase Contracts (EAG) and the Vienna UN Convention on International Trade (CISG) are excluded.

11.4. Orders are processed with the help of automatic data processing. The customer hereby grants its explicit consent that all data required for processing the order that came to innovaphone’s knowledge in the scope of the contractual relation may be processed and stored.

11.5 innovaphone reserves the right to unilaterally modify these Standard Terms and Conditions at any time. The new Standard Terms and Conditions become applicable and binding to the relation between innovaphone and the customer as soon as the customer places the first order with innovaphone after receipt of the new terms and conditions. This also applies to business relationships that have been in existence for a longer period of time.

General Terms and Conditions for Software Rental

 

1. Contracting Parties

The contracting parties are innovaphone AG (hereinafter referred to as “innovaphone”) and the customer, which is not a consumer within the meaning of Section 13 German Civil Code (BGB).

 

2. Scope of application and subject matter of the contract

2.1. The subject matter of the contract is specified in the software rental contract and these general terms and conditions for software rental, which the customer accepts upon entering into the contract. The software rental products that are available for rent (rental objects) are listed in the innovaphone licensing guidelines as amended, which can be accessed from the Downloads section of the innovaphone website. The customer determines the scope of the rental objects by selecting the software rental products via the PBX configuration or by making a change to configuration in the Devices app of the respective installation in the "Software rental" menu item.

2.2. The customer’s general terms and conditions do not form part of the contractual agreement between the contracting parties unless otherwise confirmed in writing by innovaphone.

2.3. Oral commitments and side agreements require written confirmation by innovaphone.

 

3. Offer and contract conclusion

3.1. By showing the proposed software rental contract innovaphone makes a legally binding offer.

3.2. The offer is directed exclusively at companies (natural and legal persons or partnerships with legal capacity), not at consumers within the meaning of Section 13 German Civil Code (BGB).

3.3. By clicking on the “legally binding order/conclude contract” button or check box, the customer declares electronically that it accepts the offer to conclude a software rental contract (legally valid declaration to enter into a contract) and furthermore accepts these general terms and conditions for software rental.

3.4. The customer receives the electronically concluded rental contract from innovaphone either by e-mail to the e-mail address specified by the customer or via his/her customer account in the portal.

 

4. Fees (rental charge)/price adjustment

4.1. The individual software rental product (rental object) prices are based on innovaphone’s current price list that is valid at the time the rental objects are selected; the prices are indicated in ISC. ISC can be purchased via authorized innovaphone partners.

4.2. The respective number of ISC (price per minute/rental charge) required depends on the software rental products selected via configuration of the PBX or a configuration change and the number of ISC is shown to the customer before the (new) configuration is selected or confirmed.

4.3. The rent is billed per second.

4.4. innovaphone is entitled to adjust the ISC due for the software rental at its own discretion on the basis of Section 315 of the German Civil Code (BGB) and to replace the prices with an updated price list; the new prices will be shown to the customer as set out in item 4.2, in each case after the rental objects have been selected. innovaphone shall inform the customer of price (ISC) adjustments in writing by e-mail or in the customer account on the portal at least four (4) weeks before the planned change takes effect. Otherwise Section 315 German Civil Code (BGB) remains unaffected.

4.5. In the event of a price increase or for any other reason, the customer shall have the right to terminate the rental contract with immediate effect. In such a case, item 6.5 (expiry of ISC) shall apply. This needs to be observed by the customer if the contract is terminated.

 

5. Performance and delivery, restriction of performance

5.1. Upon payment of the ISC as per the current price list for software rental products (rental objects) as amended at the time the rental objects are selected via the configuration of the PBX or a change in configuration, innovaphone shall deliver the selected rental object(s). To do this, the customer must click on the “Select” button in its customer account to select which and how many (quantity) software rental products are required.

5.2. The respective number of ISC required (price per average month) is shown to the customer on the portal before the (new) configuration is selected or confirmed.

5.3. innovaphone grants the customer a time-limited, non-exclusive innovaphone software usage right for the rental objects, which the customer obtains under the software rental contract to operate the PBX or via a change in configuration. If the customer allows third parties to use the rental objects in accordance with item 8.2. below, the customer is authorized to transfer non-exclusive rights of use.

5.4. The software is delivered by way of download of an object code (e.g. for the virtual PBX) or it is already pre-installed on the hardware. The customer shall install and configure the rental objects itself or through an authorized innovaphone partner. The customer can use the software immediately after configuration and after the ISC have been uploaded.

5.5. The right to use the rental objects expires or is restricted if and to the extent that the customer does not have sufficient ISC credit for the number of software products selected, which are necessary for the operation of the PBX configured by the customer. In the customer account, the customer is always able to see its ISC credit balance and can thus see how much longer it has the rights of use for the configured software in the installation. innovaphone shall also inform the customer in due time either in writing or electronically by e-mail about how many ISC have been used and about needing to purchase or upload additional ISC to its customer account.

Note: Emergency calls via IP Telephony are not possible if the use of the software is no longer possible or temporarily impossible because the ISCs have all been used. The customer must always ensure that emergency calls can be made via other telephone networks.

5.6. The rented software must be used in continuous operation. The customer is not permitted to frequently turn it on or off or upgrade and downgrade the configuration (e.g. downgrade over the weekend) for cost optimization purposes.

5.7. If the software supplied by innovaphone does not work and/or malfunctions, the customer shall inform the innovaphone partner in charge without undue delay so that the malfunction can be remedied. If the customer itself is the innovaphone partner, it can, depending on the partner status, contact innovaphone directly.

5.8. Under the rental contract, innovaphone provides the customer with new versions of the rental software in order to keep it up to date and to remedy any malfunctions. To this end, innovaphone provides the customer with updates with technical modifications and improvements and/or patches with software corrections. This does not include upgrades (higher versions of the software) with significant additional functionalities or partial or completely new programming. The customer must rent these for a fee by selecting the newer version and changing the configuration.

 

6. Term of contract and termination, ISC expiry after the end of a contract/deletion of customer account

6.1. The contract is entered into for an indefinite period of time and begins with the conclusion of the software rental contract (i.e. by clicking the “legally binding order/conclude contract” button), but at the latest at the point in time when the services are made available (selection of the first rental object and upon payment of the ISC).

6.2. The customer may terminate the contract at any time by giving notice with immediate effect to the day following the notice of termination.

6.3. innovaphone is entitled to terminate the contract with one month’s notice to the end of the month. This does not affect the right to terminate for good cause. Good cause for extraordinary termination by innovaphone is in particular deemed to exist if

  • the customer violates the essential contractual obligations that are incumbent upon him or her under the software rental contract and does not refrain from violating these contractual obligations despite a written warning or does not immediately eliminate consequences of contract violations that have already occurred and thereby violates the rights of innovaphone to a more than insignificant extent;
  • the customer uses the rental objects in breach of the contract terms and does not refrain from doing so despite a written warning;
  • the customer concealed facts or circumstances when concluding the contract, the knowledge of which would have prevented innovaphone from concluding the rental contract on the basis of an objectively appropriate assessment.

6.4. Notice of termination can be given in writing (e.g. by letter or e-mail).

6.5. The customer’s existing ISCs on the customer account can be kept for a period of two (2) months after termination of the rental contract. During this period, the customer may use ISC for innovaphone software rental products when concluding a new software rental contract. The ISC expire at the end of the abovementioned period of time. If the customer requests that its customer account is deleted, ISC expire with immediate effect. Any and all claims against innovaphone for reimbursement and/or compensation due the ISC expiring are excluded in this respect.

 

7. Software usage rights (licensing rights), the customer’s special software rental-specific obligations

7.1. The customer receives from innovaphone the non-exclusive, non-transferable (sub-licensable) right, limited in time to the term of the software rental contract, to use the software in the object code for the designated contractual purpose and in accordance with these general terms and conditions for software rental.

7.2. The customer is in particular obliged

(1) to use the software carefully and only in accordance with the contract,

(2) to observe the relevant product-specific restrictions on the use of the software (e.g. number of client usage) to which innovaphone refers separately (e.g. in the applicable licensing guidelines as amended),

(3) to ensure sufficient ISC credit is in its customer account so that unrestricted use of the rental objects for the operation of the PBX is possible during the term of the software rental contract. If there is not sufficient ISC available, it is not permitted and temporarily not possible to use the software (in particular emergency calls are not possible),

(4) to inform innovaphone of any changes to the e-mail address immediately; the customer is responsible for ensuring that declarations/explanations can be conveyed to him by e-mail. The customer is responsible for receiving and acknowledging the contents of the e-mails.

7.3. The customer is also obliged to additionally store any data stored on the software elsewhere outside the systems and to ensure adequate data backup.

7.4. By terminating the software rental contract, the right to use the software rental products expires. It is not permissible to use the software once the rental contract has ended.

7.5. The customer’s right to use the software expires, is temporarily restricted or restricted until the required amount of ISC is uploaded (cf. item 5.5.).

 

8. Allowing third parties to use the software/indemnification right

8.1. The customer (rental contract partner) is not authorized to allow third parties to use the rented software. It is specifically prohibited to sublet the software rental products. The use by employees of the customer within the scope of the intended use is permissible.

8.2. It is permissible to transfer the rights of use to third parties (sub-licensee) is permissible provided that the customer is an authorized innovaphone partner. In this case, however, the customer may only let authorized innovaphone partners or end customers (companies within the meaning of Section 14 German Civil Code (BGB)) use the software rental products as per the innovaphone partner contract. The distributor is thus entitled to grant rights of use to resellers and the reseller is thus entitled to grant rights of use to end customers (companies within the meaning of Section 14 German Civil Code (BGB) (authorization to transfer non-exclusive rights of use).

8.3. In the event that the software is sub-licensed to a third party as authorized pursuant to 8.2, the customer must ensure that

  • the fulfilment of the contractual obligations arising from this rental contract/software rental contract are not impaired, and
  • the general provisions for software rental and
  • the special notes on software rental

are passed on to the sub-licensee. In the license agreement, the customer shall agree an extraordinary right to terminate the agreement in the event that innovaphone terminates this contract. Furthermore, upon termination of the rental contract with innovaphone or a temporary restriction on usage as per item 5.5 due to insufficient ISC credit on the customer account and/or upon discontinuation of the partner status, the customer shall inform the sub-licensee accordingly and, if applicable, take the necessary legal measures to be able to prevent or prohibit the use of the software by the sub-licensee. In particular, the customer shall provide the information that there must always be sufficient ISC on the customer account (to enable unrestricted use of the rental objects) and shall make the necessary agreements with the user. When uploading ISC, e.g. by authorized third parties, it must be ensured that these ISC are uploaded to the customer’s customer account. The customer alone is responsible vis-á-vis innovaphone for the customer account and the rights and obligations arising from the rental contract. If the rental contract ends and the customer account is deleted, any existing ISC, including any ISC purchased by sub-licensees become obsolete (cf. item 6.5). The customer is also responsible for informing the third party accordingly.

8.4. At innovaphone’s legitimate request, the customer is obliged to disclose all sublease and licensing agreements relating to the software rental products.

8.5. If the software is legitimately provided to a third party, the customer shall indemnify innovaphone against all claims, in particular claims for damages and/or reimbursement of costs (in particular also lawyer’s fees) that third parties may assert against innovaphone due to the use of sub-licensed rental software.

 

9. Implied warranty and liability

9.1. innovaphone may opt to remedy defects in the software by providing an update (another version of the software) or by other suitable measures. Item 5.7 applies to troubleshooting: The customer shall first contact its respective innovaphone partner. If the troubleshooting is not successful and the defect cannot be remedied or if the customer is an innovaphone partner, the customer may contact innovaphone directly.

9.2. General liability limitation: In case of intent or gross negligence, innovaphone’s liability is unlimited. In case of ordinary negligence, liability is unlimited for injuries to life, limb or health. If innovaphone’s performance is behind schedule or if performance has become impossible or if a material obligation has been violated, the liability for damage to property and pecuniary loss attributable to this is limited to the foreseeable damage typical for the contract. A material obligation is an obligation, the fulfilment of which is essential to implementing the contract, the violation of which endangers reaching the purpose of the contract and on the observance of which the customer may regularly rely. Product liability is not excluded.

9.3. Liability upon loss of data: The customer bears the risk of loss of data. The customer shall ensure that the data is backed up properly and shall make backup copies and copies of the data at regular intervals. The customer may not use the software as the only storage medium for important data. In the case of loss of data, innovaphone shall be liable to the extent that the damage would have occurred if the customer had carried out proper data backup; the liability is thus limited to the reconstruction efforts that would be required assuming the customer had carried out proper data backup. The limitation to the damage that would have occurred even if the data backup had been carried out properly, does not apply in case of ordinary negligence if innovaphone cannot prove that its data backup function (for which the customer is responsible) functioned properly.

9.4. Items 9.2. and 9.3. apply accordingly to claims for reimbursement of expenses and other liability claims.

 

10. Export and import permits

The customer shall be responsible for observing the import and export regulations applicable to deliveries or services in connection with software rental products, in particular those of the United States of America. In the case of cross-border delivery or service, the customer shall bear any customs duties, fees and other charges incurred. The customer shall be responsible for handling legal or official procedures in connection with the cross-border delivery or service.

 

11. Amendments to the general provisions for software rental

11.1. innovaphone is entitled to amend these general provisions for software rental subject to a reasonable notice period provided that the material provisions of the contractual relationship are not affected and this is necessary to adapt to developments that were not foreseeable at the time the contract was entered into and the non-consideration of which would notably disturb the balance of the contractual relationship. Material provisions are, in particular, those concerning the type and scope of the contractually agreed services and the contract term, including the termination provisions.

11.2. The customer shall be informed of any amendments by letter, e-mail or fax. If the customer does not object to amendments within four weeks of receiving the notification of amendment or change, the announced amendments or changes shall become valid. If the customer objects in a timely manner, the previous conditions shall continue to apply. innovaphone shall inform the customer accordingly in the notification.

 

12. Applicable law, place of jurisdiction

12.1. These general terms and conditions and the underlying software rental contract are subject to the statutory provisions valid in the Federal Republic of Germany (excluding the UN Convention on Contracts for the International Sale of Goods (CISG)).

12.2. The place of performance for deliveries and services and the place of subsequent performance is Stuttgart.

12.3. The exclusive place of jurisdiction is Stuttgart. Furthermore, innovaphone is entitled to bring legal action at the customer’s registered office.

 

13. Non-assignability

The customer requires prior written consent to transfer the rights and obligations arising from the rental contract with innovaphone to a third party (non-assignability).

 

14. Contract language; German language prevails

These general terms and conditions were written in German. If the general terms and conditions are translated into other languages and provided to the customer, the German version shall prevail if there are any discrepancies between the difference language versions.

 

15. Partial invalidity/Severability clause

If individual provisions in these general terms and conditions are or become invalid, void or unenforceable, the validity of the remaining provisions in these general terms and conditions shall remain unaffected. The parties agree that in such a case, the provision shall apply that is closest to expressing the intention of the economic purpose of the invalid, void or unenforceable provision. The above provision shall also apply mutatis mutandi if these general terms and conditions should fail to cover a specific aspect.

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