General Business Terms and Conditions of PROVISIO GmbH

1. General Validity of the General Business Terms and Conditions

These General Business Terms and Conditions of PROVISIO GmbH apply to all legal relations of the contracting parties in particular the conclusion of contracts, e.g. sales contracts and license contract in the domain of e-commerce. The General Business Terms and Conditions are effective in the current version at the time of contract conclusion. The Customer may view the General Business Terms and Conditions by clicking on the pertinent link on our website and print them. The General Business Terms and Conditions apply also for all future business transactions, even if they are not expressly agreed on again. Infringement or opposing business terms and conditions of the Customer do not obligate PROVISIO GmbH, even if PROVISIO GmbH did not expressly object.

2. Quotations / Order Confirmations

Information and pictures provided on PROVISIO's website, in the operating instructions, marketing material and quotations must be considered as non-committal if not expressly confirmed as legally binding by PROVISIO GmbH. Contracts are only concluded by sending a written order confirmation from PROVISIO GmbH or by the direct delivery of the goods to the customer. The order confirmation is crucial for determining the scale and volume of delivery and contractual obligations. Invoices will be sent electronically to the e-mail address provided by the customer. The customer waives the postal mailing of the invoice, unless he explicitly requests it through the customer area of the website. Alternatively, a postal delivery of invoices can be requested by e-mail to sales-europe@provisio.com, by letter or by phone.

3. Prices / Terms of Payment

3.1 Prices are quoted net in EURO ex works Muenster exclusive of packing costs, shipment costs, other extra expenses (e.g. installation costs) and Value Added Taxes, which are separately declared on the invoice, unless otherwise agreed.

3.2 In case PROVISIO GmbH delivers the product on account, a payment date will be stated. If the Customer fails to pay until the due date he or she will be in default of payment without receiving a demand of payment. All resulting legal consequences will derive from the applicable law. The Customer bears the costs of the dunning procedure.

3.3 National and international shipment of goods with a net value of up to 5.100 Euro will be executed on payment in advance or payment by credit card. Other payment procedures must be agreed upon in writing with PROVISIO GmbH. An indication of the payment procedure on the order confirmation is sufficient.

3.4 Customers are not entitled to retention of payment or to reckon up with claims unless they are unchallenged or legally binding.

3.5 PROVISIO GmbH has the right to refuse delivery of the product as well as licensing the software product until all Customer's outstanding accounts have been settled.

4. Deadlines for Delivery and Service

4.1 Dates for delivery and service are only binding if expressly confirmed by PROVISIO GmbH in writing. The order must be submitted to PROVISIO GmbH in writing unless differently agreed upon e.g. Customer provides PROVISIO with a direct debit authorization.

4.2 Time of delivery does not commence prior to receipt of due payment.

4.3 Availability reservation: A bindingly agreed delivery time is extended by up to 2 weeks if PROVISIO GmbH itself is not supplied on time or can not be delivered for legal reasons. In this case the PROVISIO GmbH has to inform the customer immediately in writing about the non-timely self-delivery. PROVISIO GmbH can offer a product of equal quality and price or withdraw from the contract. The offer of a replacement or cancellation must be immediate, at the latest within 6 working days after receipt of the order.

4.4 PROVISIO GmbH is entitled to carry out partial deliveries to the customer, the delivery deadlines are therefore considered to be met.

4.5 Delivery and performance deadlines of PROVISIO GmbH are suitably extended in case of a force majeure (act of God).

5. Shipment and Transfer of Risk

5.1 The delivery is effective ex works (Muenster, Germany) at the purchaser's costs and risks pursuant to the written order confirmation.

5.2 With the dispatch of the software and hardware the delivery risk will be with the Customer. In case the product is picked up by the Customer, the Customer bears the risk of supply after being informed that the goods are available.

5.3 PROVISIO GmbH decides in its own discretion which method of packing and delivery of the goods to choose unless otherwise agreed upon.

5.4 Insurances against transport damage, breakage or theft may be managed by PROVISIO GmbH, but only if requested and paid by the purchaser.

6. Reservation of Title

Title to and property in any products passes from PROVISIO GmbH to Customer only when PROVISIO GmbH has received full payment of all sums then owed by Customer to PROVISIO GmbH. As far as PROVISIO GmbH replaces any products in the scope of warranty obligations, title to and property in the replaced products passes from the Customer to PROVISIO GmbH when the Customer receives the product.

7. Warranty

7.1 PROVISIO GmbH warrants the initial Customer that the software data carrier and any other hardware delivered with the software are without material faults under normal circumstances and maintenance at the time of delivery. PROVISIO GmbH does not guarantee that the software product or any other product meets the Customer's requirements and purposes. Nor does PROVISIO GmbH guarantee that the software product and hardware product is compatible with other software or hardware. PROVISIO GmbH assumes a warranty with regard to the individual goods and components ordered from it, but not for all its contents and set of gods, unless this is expressly agreed in writing with the customer.

7.2 The data and information provided on PROVISIO's website, in the operating instructions and manuals, and in any other material like product descriptions and catalogues must be considered as non-committal product descriptions and not as guarantees. The granting of a guarantee must be confirmed in writing by PROVISIO GmbH to become legally binding.

7.3 PROVISIO GmbH will at its own discretion either repair the product, install a circumvention of the error or replace the product if a reproducible damage or defect of the software product occurs within the warranty period. Replaced devices or parts become property of PROVISIO GmbH. PROVISIO GmbH may appoint third parties for the correction of the error. In this case, PROVISIO GmbH still acts on its own behalf and expenses.

7.4 If PROVISIO GmbH can prove that no warranty case with regard to the alleged damage or defect occurred, the Customer has to bear the expenses for defect diagnosis and connected services. If PROVISIO GmbH fails to remedy the defect by repairing or replacing within two weeks after commencement, the Customer is free to withdraw from the contract or reduce the purchase price or license fee. Withdrawal from the contract and reduction of the purchase price has to be declared in writing. Customer needs to destroy the software product, the license code and copies if he or she withdraws from the contract. The Customer must also return all data carriers, delivered hardware including backup copies, written materials and a copy of the invoice to PROVISIO GmbH or the supplier who sold the product. The products have to be delivered free. An exchange in advance is not possible.

7.5 The Customer commits him- or herself to examine the software product immediately after receipt for obvious damages and defects easily identifiable by an average Customer. Should an obvious damage, lack or defect occur, Customer shall notify PROVISIO GmbH or the supplier in writing within four weeks after delivery. Customer must reprimand damages and defects he or she recognizes at a later point in time to PROVISIO GmbH or his or her supplier within four weeks after detecting. If no such notice is received, software products and goods will be deemed conforming, free of any defect and accepted by the Customer unless the damage or lack was not recognizable even after careful inspection by an average consumer within the time limit mentioned above.

7.6 PROVISIO GmbH is not liable for damages and defects which are due to improper installation, usage and maintenance, above-average usage by Customer and assigned persons, interference in the product by Customer or third parties unless these damages have been caused intentionally or in a grossly negligent way by PROVISIO GmbH. Customer is solely responsible for the proper use of the product and data saving.

7.7 The warranty period is 24 months from the delivery of the goods or the granting of the license key; for traders and businesses this period is 12 months.

7.8 SiteKiosk is based in part on Microsoft's Internet Explorer, Google's Chromium Browser Engine, and other third-party products. PROVISIO GmbH cannot remedy any defects demonstrably attributable to the product of a third party manufacturer.

7.9 The Customer may assert a claim resulting from manufacturer warranties of the offered products. However, third-party statements and grants (e.g. distributors) about warranty, liability and compensatory or punitive damages are non-binding to PROVISIO GmbH.

8. Liability for Defects

8.1 Any claims for damages of the purchaser against PROVISIO GmbH, its legal representatives or vicarious agents, for whatever reason (default, tort claims, etc.) are expressly excluded, unless they are based on intent or gross negligence or it is about damage from the injury of life, body or health. In any case, the liability is limited to the amount of royalties paid or the purchase price.

8.2 Neither data processing systems nor computer software work according to the current state of the art always error-free. Correspondingly, PROVISIO GmbH cannot technically guarantee a faultless operation of online purchasing. Deficiencies of the Internet cause also technical errors. PROVISIO GmbH is therefore not liable for damages resulting from an omitted order processing due to a technical error.

8.3 PROVISIO GmbH's liability according to mandatory product liability law will remain unaffected.

8.4 The preceding regulations cover the entire scope of liability of PROVISIO GmbH, its representatives and auxiliary persons. Any further liability is excluded.

9. Consumer Right of Withdrawal

9.1 Consumers are entitled to a statutory right of withdrawal. A consumer is any natural person who concludes a legal transaction for purposes that can be attributed to neither his commercial nor his independent professional activity. In case you are an entrepreneur, you are not entitled to a right of withdrawal.

9.2 You have the right to withdraw from this contract within 14 days without giving reasons. The revocation period is 14 days from the day on which you or a third party named by you, who is not the carrier, has taken possession of the respectively last delivered goods of a single order. For services, the cancellation period begins on the day the contract is concluded. To exercise your right of withdrawal, you must inform PROVISIO GmbH, Wilhelm-Schickard-Str. 1, Technology Park, 48149 Münster, Germany | Phone: +49 (251) 846924-0 Fax: +49 (251) 846924-10 E-Mail: sales-europe (at) provisio.com by means of a clear statement (e.g. a letter sent by mail, fax or e-mail) about your decision to revoke this contract. You can use the model withdrawal form provided on https://www.provisio.com, but this is not mandatory. In order to maintain the cancellation period, it is sufficient for you to send the notification of the exercise of the right of withdrawal before the expiry of the withdrawal period.

9.3 If you withdraw from this contract, we will refund all payments we have received from you, including delivery charges (except for the additional costs arising from choosing a different delivery method than the most favorable standard delivery we offer) immediately and at the latest within fourteen days from the date on which we received the notification of your revocation of this contract. For this refund, we will use the same means of payment as you used in the original transaction, unless expressly agreed otherwise with you; in no case will you be charged for this refund fees. We may refuse a refund until we have received the goods back or until you have provided proof that you have returned the goods, whichever is the earlier. You must return the goods to us immediately and in any event not later than fourteen days from the date on which you inform us of the cancellation of this contract. The deadline is met if you send the goods before the deadline of fourteen days. You bear the immediate costs of returning the goods. You only have to pay for a possible loss in value of the goods, if this loss of value is due to a handling that is not necessary for the examination of the nature, characteristics and functioning of the goods. If you have requested that services be commenced during the period of cancellation, you must pay us a reasonable amount equal to the proportion of services already provided to you at the time you inform us of the exercise of the right of withdrawal, in respect of this contract in comparison with the total volume of services provided for in the contract.

9.4 The right of withdrawal does not apply to contracts for delivery

  1. of goods which are not prefabricated and whose manufacture is the sole choice or determination by the consumer or which are clearly tailored to the personal needs of the consumer.
  2. of sealed goods which are not suitable for return for reasons of health or hygiene if their seal has been removed after delivery.
  3. goods that have been inseparably mixed with other goods after delivery due to their nature.

9.5 Your right of revocation lapses if we have provided our services in full and have only begun to perform the service after you have confirmed your express consent and, at the same time, your knowledge that you will lose your right of revocation in the event of full performance of the contract by us.

10. Consumer Information / Consequences of Cancellation

Online dispute resolution pursuant to Art. 14 para. 1 ODR-VO: The European Commission provides a platform for online dispute resolution (OS), which can be found at this URL: http://ec.europa.eu/consumers/odr/

10.1 In the event that the agreement is validly cancelled, we return all amounts that we have received from you, including delivery costs (with the exception of the additional costs from non-standard delivery methods) at the latest within 14 days from the date on which the notice of cancellation of this contract is received. For this repayment, we use the same method of payment that you used for the initial transaction, unless we explicitly agreed on another method of payment; you will not be charged any fees for this repayment.

10.2 We may withhold the reimbursement until we have received the goods back or until you have demonstrated that you have returned the goods, whichever comes first. You have to return the goods promptly and in any event not later than 14 days from the date on which you notify us of the cancellation of this contract. The deadline is met if you send back the goods before the period of fourteen days. You will be required to pay for any diminished value of the goods.

10.3 Return costs are your responsibility.

10.4 You shall only be liable for any diminished value of the goods resulting from the handling other than what is necessary to ascertain the nature, condition and functioning of the goods.

11. Customer Data Protection

The customer or licensee agrees that his personal data received by PROVISIO GmbH in the course of the business relationship will be stored in the computer system of PROVISIO GmbH and processed automatically. PROVISIO GmbH guarantees that it collects, processes, stores and uses the customer data resulting from orders only in connection with the processing of the order. For internal market research and marketing purposes only anonymous data is used. PROVISIO GmbH will pass on customer data only for order processing to affiliated companies. If the customer does not agree to the usage of the data for internal purposes of PROVISIO GmbH, the customer is entitled to object to this usage at any time in text form. Further data processing is based on the data protection information on the company's homepage (www.provisio.com).

12. Closing Statement

12.1 All property rights, industrial property rights and copyrights in the software products belong to PROVISIO GmbH.

12.2 The place of performance for payments and deliveries is the registered office of PROVISIO GmbH.

12.3 All changes and deviations as well as ancillary agreements concerning the general terms and conditions of PROVISIO GmbH, require the written form.

12.4 German law applies to the legal relationships between PROVISIO GmbH and its customers as well as to the respective terms and conditions. The application of the UN Convention on Contracts for the International Sale of Goods of 11.04.1988 is excluded.

12.5 The exclusive place of jurisdiction is the registered office or other legal venue of choice of PROVISIO GmbH, as far as the customer is a merchant within the meaning of the Commercial Code or a corporation under public law.

Münster, Germany – December 2018