General Business Terms and Conditions of PROVISIO GmbH

1. General Validity

These General Business Terms and Conditions of PROVISIO GmbH apply to all legal relations of the contracting parties in particular the conclusion of a written contract, 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 expressly object.

2. Quotation / Order Confirmation

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 will only be concluded when the Customer has received a written order confirmation from PROVISIO GmbH. The order confirmation is crucial for determining the scale and volume of delivery and contractual obligations.

3. Prices / Terms of Payment

3.1 Prices of PROVISIO GmbH 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.

3.2 In case PROVISIO GmbH delivers the product on account, a time for payment 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. 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 cash on delivery basis, 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 The Licensee is 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. Times of Delivery and Service

4.1 Times for delivery and service are only obligatory if expressly confirmed by PROVISIO GmbH in writing. Any Customer purchase order must be provided 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 Disposability-Reservation: Delivery times binding upon an agreement will be extended up to 2 weeks in case PROVISIO GmbH has not been supplied in time or the delay in delivery in caused by legal reasons. In this case PROVISIO GmbH has to promptly notify the Customer in writing of the delayed delivery. PROVISIO GmbH may offer a product equivalent in quality and price or withdraw from the contract. Offer of compensation delivery and notification of withdrawal from the contract will be issued without delay but no later than 6 workdays after receipt of purchase order.

4.4 PROVISIO GmbH may perform partial deliveries through which delivery times are observed.

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

5. Delivery and Risk of Loss

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. This rule also applies if delivery is free. 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. 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 Seller. As far as PROVISIO GmbH in the scope of warranty obligations replaces any products, 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 delivered hardware 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 grants a warranty for single products but not for a main unit consisting of certain single products unless expressly agreed upon by the parties in writing.

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. 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. The Customer agrees to pay for all accepted goods in accordance with the terms and conditions set forth herein.

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 twelve months beginning with the delivery of products.

7.8 SiteKiosk is based on Microsoft's Internet Explorer. PROVISIO GmbH is not able to fix bugs which are related to the Microsoft Internet Explorer.

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 of PROVISIO GmbH

8.1 All other warranty and liability of PROVISIO GmbH, its representatives and auxiliary persons is excluded unless PROVISIO GmbH acted in a grossly negligent way or intentionally, or bodily harm is subject matter of the damage event. In any case, PROVISIO GmbH's liability is limited to the amount paid by the Customer for the product or license respectively.

8.2 Processing equipment and computer software do not perform error-free under the current state of the art. Accordingly, PROVISIO GmbH cannot provide for an error-free performance of our e-commerce platform at any time. 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 You are entitled, within 14 days and without the requirement of stating reasons, to cancel the purchase agreement in writing (e.g. letter, fax, email) or – if the goods have already been delivered to you within this period - by returning the said goods.

9.2 This period starts to run after receipt of this written legal notice, however not prior to the conclusion of the contract, the receipt of the goods by the recipient (not before receipt of the first delivery if there is repeated delivery of goods similar in type) and not before we have fulfilled our duties pursuant to Article 246 § 2 in conjunction with § 1 paragraph 1 and 2 EGBGB.

9.3 A standard cancellation form can be found on our website (Cancellation form). The timely dispatch of the cancellation notice or the goods shall be deemed sufficient for compliance with the cancellation term.

9.4 The cancellation or the product return should be addressed to:

PROVISIO GmbH
Wilhelm-Schickard-Str. 1
Technologiepark
48149 Muenster
Germany

E-Mail: sales-europe(at)provisio.com
Telephone: +49 251 846924 0
Fax: +49 251 846924 10

10. Consequences of Cancellation

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. Additional Notfication

Your right of cancellation expires prematurely if the contract is completely fulfilled by both parties at your explicit request before you have exercised your right of cancellation.

12. Exclusion of Right of Cancellation

The cancellation right does not apply to contracts for the supply of

  • goods which are produced according to customer specifications or clearly tailored to personal needs or which are not suitable due to their condition for a return.
  • goods which are inseparably mixed or mixed in with other things.
  • computer software if the delivered data carriers have been unsealed.
  • computer software if the software has digitally been downloaded.

13. Protection of Data Privacy

The Customer agrees expressly that his/her company and personal data will be saved and processed in the database of PROVISIO GmbH in conjunction with the business he/she has done with PROVISIO GmbH and in accordance with the law. Customer further agrees to the procedure by means of which the data are processed. PROVISIO GmbH collects, processes, saves and uses Customer data received through purchase orders only in conjunction with the process of the purchase orders and only for marketing and market analysis purposes. Customer data will only be passed on to associated companies for processing purchase orders. Customers who disagree to these internal usages of their data may object by a written notice at any time.

14. Closing Statement

14.1 All property rights, title, and copyrights in and to the software products and plug-ins, including all documentation and any copies of the software product are owned by PROVISIO GmbH. The software product is licensed not sold.

14.2 Place of Delivery and Payment is the company seat of PROVISIO GmbH.

14.3 If any part of these General Business Terms and Conditions are illegal or become illegal, the remainder of the Business Terms and Conditions remain in full force nonetheless. The contract becomes automatically amended in a way that comes closest to the business intentions behind the invalid part that made this contract illegal. The same rule applies if a contractual loophole occurs.

14.4 Any amendments and modifications to these terms and conditions need to be in writing including this clause.

14.5 Only the law of the Federal Republic of Germany applies to this contract and any other legal relations between the Customer and PROVISIO GmbH. UNCITRAL provisions (UN-LAW) do not apply in any form.

14.6 Place of jurisdiction is the seat of PROVISIO GmbH or any other legal jurisdiction chosen by PROVISIO GmbH and allowed by law if the Customer is a fully qualified merchant, a public corporation or a special fund.