Terms and conditions

For supplies and services for hardware and software

1. General

All offers, deliveries, services and contracts concluded by EyeScreens New Media GmbH are subject to the following conditions. Even if not explicitly contradicted in the individual case, deviating or supplementary conditions of the customer are not contract content. These conditions do not apply to contracts concluded with consumers (consumer contracts).

2. Offers and conclusion of contract

1. Offers are generally non-binding.

2. Telephonic applications shall only become binding upon written confirmation.

3. Customer protection commitments shall be subject to written confirmation and shall cease to be effective after six months from the date of issue, unless a different period of validity has been expressly agreed.

4. The subject matter of the contract shall be the prospectuses, descriptions, technical data and specifications of our products applicable at the time the contract is concluded. However, EyeScreens reserves the right to make technical changes or changes in form, color, weight or dimensions (if reasonable).

3. Delivery and transfer of hazards

1. The mentioned delivery, performance and execution periods and dates shall be deemed non-binding unless otherwise agreed in writing. Shipping data are indicative dates and require the timely receipt of necessary information, documents and parts to be supplied by the customer.

2. The correct and timely self-delivery by our hardware and software suppliers is generally reserved.

3. Part deliveries and partial services as well as corresponding settlements are permitted. Delivery periods are therefore deemed to be met.

4. Claims or withdrawal from the contract due to delayed delivery and performance or default shall be preceded by a reminder in writing by the customer with the setting of a reasonable period of grace. Force majeure, operational disturbances, delivery problems, unavoidable raw material shortage and destruction of provided services by third parties relieve of the observance of agreed delivery periods.

5. The delivery of the goods takes place at the cost and risk of the customer from Dresden. If the goods are shipped, the purchaser shall also bear the risk of transport in the case of freight-free delivery. The decision on the appropriate method of transport (transport route) lies with EyeScreens. The goods are insured at the expense of the customer for transport. Any transport damages and transport losses must be reported immediately in the presence of the freight forwarder and only after their entry into the forwarding system, otherwise the delivery is deemed to be approved. Subsequent damage reports are not permitted.

6. If the customer takes care of the pick-up, the transport is at his own risk.

7. The risk of accidental loss or accidental deterioration of the goods supplied shall be transferred to the customer in the case of contracts for deliveries as soon as the delivery item is handed over to the person carrying out the transport or leaves the warehouse of EyeScreens for dispatch.

8. If the customer does not accept the delivery item offered to him or if dispatch or delivery is delayed at the customer’s request, the risk of accidental loss or accidental deterioration of the delivery item shall be transferred to the customer upon notification of readiness for dispatch. In these cases, EyeScreens shall be entitled to demand payment of warehouse fees of 0.5% in total, but not more than 5% of the contract value, if the customer does not have a lower loss.

4. Prices and terms of payment

1. All prices are net prices in EURO.

2. The prices stated in the confirmation of order are decisive, which, unless otherwise agreed, are from the EyeScreens warehouse, plus packaging, shipping, installation and insurance as well as VAT.

3. EyeScreens is entitled to change prices without notice in the event of changes in exchange rates, customs duties, taxes (including VAT), freight and insurance costs, cost of ownership (e.g., components and services) or material prices (e.g. prices for metals) without prior notice.

4. In the case of a delivery period of more than six weeks or in the case of long-term contracts lasting more than 6 weeks, EyeScreens is entitled to increase costs incurred in the meantime for procurement or delivery or for personnel use (wage and additional costs) by increasing the prices affected by this in the scope required to compensate for these changes.

5. Delivery generally takes place by cash on delivery or prepayment without discount deduction. If, exceptionally, the shipment is made by invoice, the payment is due without deduction, unless otherwise stated on the invoice or agreed upon, within 10 days after the invoice has been issued. After expiry of this period, the customer shall be in default. There is no need for a special reminder. Payment times are protected if EyeScreens can have the payment (credit on the account of EyeScreens, redemption of checks).

6. If the customer is in arrears, interest of 8% above the base rate will be due for payment to EyeScreens. Any further claims will not be affected.

7. If the customer fails to meet his payment obligations, all outstanding claims of EyeScreens against the customer are immediately due for payment. The same applies if EyeScreens is entitled to a right to refuse performance pursuant to § 321 Paragraph 1 BGB (German Civil Code).

8. The offsetting of claims by the customer is only permitted with legally binding and undisputed claims. This also applies to the assertion of rights of retention. EyeScreens shall be entitled to charge payments against older due invoices, even if the purchaser is unable to meet the payment obligations.

5. Proprietary reservation

1. EyeScreens retains title to the goods until all claims against the purchaser have been settled from simultaneous or later contracts.

2. In the event of a significant deterioration in the economic situation and in the case of an insolvency application by the customer, EyeScreens shall be entitled to demand the surrender under retention of title of delivered goods. This withdrawal does not constitute a withdrawal from the contract, unless EyeScreens explicitly declares this. Should goods subject to this retention be seized by third parties, EyeScreens must be informed immediately.

3. The customer shall keep the reserved goods free of charge. He shall maintain the reserved goods in a proper condition and adequately insure them against water, fire, theft and other risks at a reasonable cost, in accordance with commercial requirements. The customer hereby assigns his claims from the insurance contracts to EyeScreens.

4. In the case of attachment due to court order or other access by third parties, the customer shall immediately notify EyeScreens. He has to opt out from the infringement and point out the property of EyeScreens. The cost of the intervention is borne by the customer.

5. If the conditional goods are inseparably connected or mixed by processing or other moving objects, EyeScreens acquires co-ownership of the new item.

6. The customer is entitled to resell the reserved goods and hereby assigns all claims to EyeScreens, which arise from the resale. EyeScreens hereby accepts the assignment.

7. In case of breach of contract, EyeScreens shall be entitled to request the immediate release of the reserved goods without the customer being entitled to a right of retention, to enter the business premises, to accept the reserved goods and, if necessary, to assign the customer’s claims to return to demand. The assertion of these rights, in particular a withdrawal of the reserved goods, shall not be deemed a rescission of the contract unless EyeScreens explicitly declares this.

8. EyeScreens is obliged to release securities at the Purchaser’s request to the extent that the value of the collateral exceeds the claims to be secured by more than 20%.

6. Warranty

1. The nature of the object can be found in the product description on the order confirmation. Advertising announcements and advertisements, which are merely commercial content, do not constitute a specification.

2. Defective assembly instructions are only a defect if they are contrary to the proper assembly of the delivery item.

3. The customer is obligated to examine the goods immediately, in the event of delivery or takeover, for any quantity deviations, incorrect deliveries and obvious defects and to notify defects in writing without delay (at the latest, however, within five working days). This obligation of the customer includes the commissioning as well as the test after installation of necessary software under practical conditions of use. In the case of non-timely investigation and display, the delivered goods shall be deemed to have been approved by the Purchaser. Any obvious deficiencies shall be reported immediately after their discovery, but no later than six months after delivery of the delivery item.

4. In the case of a timely investigation, the warranty period shall be one year from the delivery of the goods to the purchaser.

5. If goods are expressly sold as “used”, we assume no warranty.

6. Unless otherwise agreed upon, EyeScreens shall not be responsible for the products being compatible with a particular purpose specified by the Customer or compatible with other devices and software.

7. If the computer hardware and software are purchased at the same time, these items are deemed not to be sold together. Defects in these individual components do not entitle the purchaser to assert warranty claims with regard to the other hardware and software supplied. In this case, the warranty claims of the purchaser pursuant to these General Terms and Conditions shall be limited to the respective deficient individual component. As far as standard software is delivered, the warranty is limited to the functionality of the respective data carrier.

8. EyeScreens is entitled to remedy a defect indicated at its option by rectification or delivery of a defect-free item (supplementary performance). If a subsequent performance has failed or has failed definitively, the Purchaser is entitled to a reasonable reduction in the purchase price. The Purchaser shall only be entitled to a change (rescission) if the reduction in the purchase price is unreasonable for him. The purchaser’s right to damages shall remain unaffected.

9. Transport costs shall also be borne by the Purchaser in the case of justified warranty claims. The purchaser must notify us immediately of all necessary information for the purpose of fault diagnosis and rectification. In the case of a supplementary performance on the spot, unhindered access to the defective product shall be ensured. No new warranty periods will be initiated by warranty repair.

10. All systems are CE compliant with all components offered by us. We provide proof of this at the customer’s request. If, at the request of a customer, other components, additional equipment, etc. are used, responsibility for the CE conformity of the entire system and the individual parts is transferred to the customer.

11. EyeScreens does not provide any guarantees in the legal sense.

12. Claims of the customer due to breach of duty, even beyond the guarantee, lapse one year after delivery of the delivery item, as long as no shorter limitation periods apply.

7. Liability: The following restrictions apply to the liability of EyeScreens:

1. Claims for damages instead of performance can only be asserted if the customer has previously formally set an additional deadline for subsequent performance and this deadline expires without success. Customer’s fulfilment claims expire at the expiration of the set deadline, but at the latest as soon as the customer requests compensation instead of the service.

2. If essential contractual obligations are violated or, in the absence of assured characteristics, the liability is limited to the replacement of typical and foreseeable damage.

3. Liability shall be excluded for infringement of non-contractual obligations or if the damage suffered by the customer could have been prevented (eg. data backup) by reasonable measures.

4. The amount of the damages is limited to the interest of the customer. All further rights and claims, irrespective of their legal basis, are excluded. This also applies to the replacement of indirect damages (consequential damages such as loss of profit).

5. The liability under the Product Liability Act as well as the liability for damage caused intentionally or through gross negligence by EyeScreens (or its vicarious agents) shall remain unaffected by these limitations.

8. Disposal

1. With the takeover, the customer assumes the obligation to dispose of the delivered goods at the expense of the customer after termination of the contract at his own expense and shall indemnify EyeScreens from the obligations pursuant to paragraph §10.

2. ElektroG (obligation to take back) and all related claims of third parties. 2. If the Purchaser distributes the goods to commercial third parties, he shall oblige them accordingly to take back and dispose of them. If he fails to do so, he himself is obliged to take back the delivered goods at the customer’s expense after the end of use and to dispose of them properly according to the legal regulations.

3. The claims of EyeScreens pursuant to sec. 1 to 2 shall not be subject to a limitation period of two years after the end of the use of the device. The two-year period of expiry shall begin at the earliest upon receipt of a written communication from the customer concerning the termination of use at EyeScreens.

9. Privacy

1. EyeScreens guarantees that customer data collected on the occasion of orders are only collected, processed, stored and used for internal market research and marketing purposes in connection with the processing of the order.

2. Customer data will only be passed on to affiliated companies for order processing.

3. If the customer does not wish to use data for internal purposes, the customer is entitled to object to this use at any time in writing.

10. Final provisions

1. The place of performance and jurisdiction for both contracting parties is Dresden. In the case of deliveries and / or services outside the Federal Republic of Germany, the exclusive application of the law of the Federal Republic of Germany and the Dresden court of jurisdiction shall be agreed upon for all contract partners.

2. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.

3. The invalidity of individual provisions in these terms and conditions shall not affect the binding nature of the contract. An ineffective provision shall be deemed to be an agreed upon provision which comes as close as possible to the invalid provision. 08.06.2010 EyeScreens New Media GmbH, Presentstraße 18, 63939 Wörth am Main, Germany.