I. Contractual Basis
1.0 Area of validity and exclusivity
1.1 These present GCBs – General Conditions of Business (hereinafter referred to as the ‘GCBs’) of LINO are applicable for all contractual relationships and pre-contractual negotiations with the customer, independent of the type and extent of the goods or services supplied in the course of current and future business relationships. Divergences from these GCBs can occur from stipulations in individual agreements and contracts. Those individual stipulations then take precedence over these GCBs.
1.2 Lino GmbH (Inc.) (hereinafter referred to as ‘LINO’) concludes agreements and contracts solely on the basis of these GCBs. These stipulations are also the basis for all future supplies of goods and services even when the application of the GCBs is not specifically referred to.
1.3 LINO will not recognise any opposing GCBs of the customer unless specifically agreed in writing.
1.4 All alterations to these GCBs will be notified to the customer in writing. The alterations are deemed approved unless challenged in writing. LINO will draw the attention of the customer to this condition. The customer is then required to send objection to LINO within 4 weeks after the date of the notice of the alteration.
II. Terms and conditions for software
2.0 Licensing and extent of software usage
2.1 In agreements involving a one-off payment, the customer can acquire a simple, time unlimited, transferrable user right, unless otherwise agreed. The stipulations, in particular of Section VI hereof are applicable in this regard.
2.2 In agreements with monthly charges and/or instalment payments, the customer acquires a simple, non-transferrable and time limited user right in the specific software indicated in the formal order and/or billing as well as documentation material for the duration of the agreement (rental or financial leasing), unless otherwise agreed.
2.3 The areas of application, the efficiency and all other of the program characteristics are shown in the program documentation provided with the software. Customers will receive the program documentation, either in writing or in digital form.
2.4 The installation and/or the settings of the hardware are not services provided by LINO in conjunction with the acquisition of the software. Agreements can be concluded separately for the installing and setting of the hardware, the installation of the software at the premises of the customer, and for advisories provided on adjustments and the application of the program.
2.5 When agreed, the customer acquires a right to use the software in workstations associated with a local network. Workstations in the network also include the associated network home workstations, portable computers connected to the network from time to time, as well as reserve workstations on condition that these are only replacements for workstations included in the network. The operability of the software is only ensured for the agreed number of workstations.
2.6 Without the written permission of LINO, the customer may not make any copies of the software and/or the documentation made available, for and on behalf of third parties. Third parties in this sense are also associated but separately legally registered businesses. Unless otherwise agreed, multiple use of the software on more than one system, will attract separate user fees and amounts payable for each additional individual use.
2.7 The customer may only make changes in- or add supplementations to -the software with the permission of LINO.
2.8 In case of software deficiencies, customers are entitled to reduce their obligations to pay the current user fees appropriately when- and for so long as -the use of the programs is considerable limited. The customer may only proceed to rectify deficiencies themselves and may demand that costs incurred in this respect be reimbursed if the defect is not remedied within 3 months and LINO is in default due to a reminder issued by the customer at that time. § Section 536a para. 1(1). Alt. BGB is excluded.
3.0 Ownership rights and copyrights
3.1 The software made available to the customer remains in the ownership of LINO including the entire documentation. LINO also remains the owner of the copyrights and user rights in the programs made available to the customer including the associated documentation materials. The customer is not permitted to remove, alter or otherwise erase the notices concerning copyright and concerning the existent user rights.
4.0 Duration of agreements and contracts, regular notices to terminate and software rental
4.1 Software rental agreements are concluded for an indeterminate period of time, but at least for the intended rental time period, unless otherwise agreed. The date for the erection of an agreement or contract is the date when the order form, order confirmation, agreement or contract is signed by the customer and/or received by LINO.
4.2 Unless otherwise expressly agreed in writing, notice of three months to terminate software rental agreements can be given before the intended end of the contractual time period. Sentence 1 of this present Article is also correspondingly applicable to give notice to terminate individual services and/or procedures.
4.3 LINO is also entitled hereunder to terminate agreements and contracts without observing a time period of notice, when the customer uses the software contrary to agreed terms and conditions, in particular allows third parties to use the software without permission, or undertakes alterations on the entire system, or on individual modules, without the prior written permission of LINO. The same applies for any other sundry grievous contractual infringements, in particular when the customer is in arrears of at least the payment of one full monthly charge or fee on two consecutive occasions.
5.0 Software rental agreement termination
5.1 The return of the software, documentation and data carrier. Upon the termination of the software rental agreement, the customer is obliged to return the software made available to LINO with immediate effect, as well as the data carrier and the documentation, or render the software unusable or erase the program from the hard-drive-/ hard disk. The documentation for the customer to address its statutory documentation requirements need not be returned.
5.2 Confirmation of the entire return of the software and documentation. When required by LINO, the customer is to obtain a formal confirmation of its authorised representative management for LINO, duly confirming that the return obligations have been entirely and contractually completed and, that no using of the software will be permitted beyond the termination of the business relationship.
III. Works- and service -agreements
6.1 In cases of works services, LINO is liable for the supervision, management and control of the provision of the services as well as for the services rendered. The customer is liable for the organisational integration of the LINO services in its day-to-day business procedures. The services of LINO also serve the provision of advisories and backup support for the customer. LINO will provide such services at its own liability.
6.2 Unless otherwise divergently agreed, the liability for the anticipated results envisaged from the works- and servicing –services is the liability of the customer.
7.0 Extent of the services
7.1 The details of the individual services to be provided, the planning- and execution -terms and conditions, the determination of the functions and specifications of a works service as well as details concerning the employment of the parts, equipment, programs or other sundry requisite mediums, are specified in the order documentation.
7.2 Either of the contractual parties can agree upon request for a time plan to be introduced for the provision of the services and a planned date for the termination of the services as well as a planned fixed date for the completion and commissioning of works services.
8.0 Alterations to the extent of the services
8.1 After the conclusion of an agreement or contract, the customer can require alterations to the extent of the services, within the capabilities of LINO provided that such is not unreasonable for LINO. LINO will then ascertain whether- and on what conditions –such alterations are executable and will then notify the customer of the results of the verification. Should the request be reasonable and executable, LINO will inform the customer at the same time as to whether an overall verification is necessary. When the request of the customer requires an extensive verification, then this is to be the subject of a special order. The verification expenditure can then be charged and billed to the customer by LINO.
8.2 LINO will then make the customer an offer for the realisation of the alterations, indicating the time period involved and influences on the final charge. The customer is to come to a decision within the time period required in the offer. Any such alterations to the extent of the services are to be documented by appropriate adjustments to the relative agreement or contract.
8.3 LINO and the customer can come to an arrangement, whereby the services affected by the requirement for alterations, can be interrupted until the necessary adjustments are made to the contractual agreements. Should no accordance be reached within the time period for decision in the offer, then the work routines will be continued on the basis of the agreement or contract. The time periods required for the services will therefore be appropriately extended. LINO can charge the arranged remuneration for expenditure or a reasonable increase in the fixed price, for the duration of the interruption.
8.4 Should LINO be aware, that the description of the intended services or the instructions of the customer are erroneous, incomplete, not sufficiently clarified or cannot be executed objectively, LINO will notify the customer appropriately and of the recognisable consequences. The customer for its part is immediately to decide upon an alteration of the description of the intended services. Art. 8, Sub Arts. 8.1 to 8.4 are to apply.
9.0 Collaboration requirements of the customer
9.1 The customer is to create all prerequisites within the sphere of its business, which are necessary for LINO to execute the contractual services, and this free of charge.
9.2 The customer is liable for the provision, correctness and completeness of all information, working documentation and working mediums, necessary for LINO to carry out the services. In rendering its services, LINO is dependent on the customer fulfilling the foregoing requirements within the agreed time. Should this not be the case, and delays are incurred and/or added expenditure, then LINO can demand changes to the time plan or the prices, apart from asserting any other statutory entitlements or indemnities.
9.3 Occurrences of force majeure (Act of God), which considerably hinder the execution of the services by LINO, or render these impossible, will entitle LINO to postpone its contractual duties by the duration of the hindrance as well as by an appropriate start-up time period. Strikes, lockouts and similar circumstances are the same as force majeure when unforeseen, grievous and inculpable. LINO will notify the customer with immediate effect of the occurrence of such a situation, and will inform the customer subsequently as to when the services can be provided anew.
9.4 Execution time periods will also be postponed when the hindrance is on the part of the customer. These are also to be postponed appropriately and reasonably when the customer is thus unable to undertake collaborative activities, or not provide such within an agreed period of time. In the foregoing cases, LINO is to be entitled to require the payment of the agreed remuneration of the order or to make an increase in the agreed fixed price.
10.0 The provision of personnel
10.1 Both contractual parties are to nominate a contact person for mutual coordination and clarification purposes of all queries concerning the contractual relationship.
10.2 During the rendering of the services, each contractual party is liable for the selection, supervision, management, control and remuneration of its own nominated personnel.
11.0 The retaining of the services of third parties
11.1 LINO is entitled, to retain certain third parties for the rendering of the contractual services.
12.0 Acceptance (for works services only)
12.1 LINO will provide the customer with the contractually agreed service or supply the manufactured ordered parts for acceptance as a unit. LINO will evidence the customer within the scope of an acceptance test of the fulfilment of the characteristics of the services or parts in accordance with fixed acceptance criterions and with the test data provided by the customer.
12.2 The customer is to accept the services or parts with immediate effect after a successful acceptance test and/or delivery-/ handover. The customer is not entitled to refuse delivery-/ handover merely on the basis of unessential divergences from the ordered requirements. The contractual duty of LINO to rectify deficiencies remains unaffected by the foregoing.
13.0 Ownership and user rights
13.1 LINO or its third parties possess all the ownership- and user rights in the materials (e.g. written work compositions, programs, documentation, protocols, technical drawings), which are created during the execution of the services, or which already existed previously, as well as their processing. Unless otherwise provided for in the order form-/ mandate, the customer will receive a copy of these specified materials and obtain for these an irrevocable, not exclusive right to use, run, reproduce, display, transfer and distribute copies of these materials within its business.
13.2 A business is defined here as each legal person (GmbH (Inc.), AG (LLC/Ltd.) etc.) as well as each subsidiary in which a financial holding of at least 50% is entertained. The customer is under a contractual duty hereby to show a copyright endorsement and any other notification of ownership on each copy, which is made under these terms and conditions.
14.0 Liabilities for deficiencies
14.1 In cases of works services, LINO warrants, that the service characteristics agreed in the mandate are met and correspond with the extent of the services. Deficiencies should however be reported by the customer to LINO with immediate effect. Such reports are to include a precise deficiency description. The customer is to provide LINO, upon first demand with documentation and information to a reasonable extent, which LINO requires for assessment and rectification.
14.2 Once a deficiency occurs, LINO is entitled to select to rectify the deficiency by rectification or by providing a replacement (subsequent subsidiary completion). The prerequisite is that the matter involves a considerable deficiency.
14.2.1 Should any one of the two types of subsequent subsidiary completion be impossible or unreasonable, then LINO is entitled hereunder to reject these. LINO can reject subsequent subsidiary completion so long as the customer fails to fulfil its payment obligations towards LINO corresponding to the deficient-free part of the service.
14.2.2 Should any subsequent subsidiary completion be unsuccessful within 3 months, or is impossible or unreasonable, then the customer can select an entitlement to diminution or withdrawal. Unless otherwise specified under Art. 14, Sub Article 14.3, indemnities for loss or damage are excluded hereby.
14.3 Should LINO culpably perpetrate an infringement of a material contractual duty (a co-called ‘cardinal’ contractual duty), the loss or damage is limited to the contractually typical, foreseeable loss or damage, but to a maximum of EUR 10,000.00 each and every occurrence of loss or damage per customer. Otherwise liability is excluded hereby. Limitations of liability or restrictions of liability are not valid in case of death or injury to persons or encroachments upon their health, or any other loss or damage because of premeditation or gross negligence in the event of infringements of contractual duties. Such limitations or restrictions do also not apply for product liability or guarantees or assurances when any one of the deficiencies triggers the liability.
14.4 All claims for subsequent subsidiary completion, indemnities for loss or damage and reimbursement of expenditure become statute barred one year after the date of acceptance. In cases of acceptance of a series of partial services, the date of acceptance is the acceptance date of the last item of the services. When a partial service is used by the customer, then the warranty time period commences for such partial service on the first day of use after acceptance. Sentence No. 2 of this present Sub Article remains unaffected in regard to deficiency liability for the contractual interaction of the service characteristics of the total of the partial works.
14.5 When LINO can show, that no deficiencies occurred, it can require reimbursement for the expenditure and outlay incurred in providing rectification for the deficiencies in accordance with its generally applied remuneration rates, unless otherwise agreed.
14.6 The customer has no claim to indemnity for deficiencies in the provision of services.
15.0 The termination of agreements and contracts, and notices to terminate
15.1 The customer can give notice of one month to terminate an agreement or contract. Notices to terminate are to require the written form. After receipt of such a notice, LINO will stop all work for the provision of the affected services with immediate effect, or in accordance with a time plan coordinated with the customer. The customer is to pay the agreed price less the proportionate charges for each agreed extent of the services, which are saved by the notice to terminate. When the customer gives notice to terminate on grounds for which LINO is liable, then the customer is only to pay the price for those parts of the services received, which for the customer are usable.
15.2 Notwithstanding the foregoing, each of the parties is entitled to give extraordinary notice to terminate on material grounds going to the root of the agreement or contract, without observing any time period of notice.
IV. Advisory agreements
16.0 Underlying contractual fundamentals
16. 1 Customer advisories concerning the installation, implementation and adjusting of the system (so-called ‘customizing’) by means of adjustment programming as also in regard to operational requirements, will be conducted on the basis of specially concluded individual contracts. The terms and conditions of these present GCBs represent an overriding framework agreement in this respect. LINO will provide advisories within the scope of its operational possibilities. Individual advisory agreements thus only have the provision of services as their subject matter.
17.0 Description of the services and ‘hotline’ backup support
17.1 LINO provides a hotline service during its normal business hours for backup support. The support is merely for responding to queries on the function and handling of the LINO products at the level of their latest versions and status.
18.1 Unless otherwise provided for by special agreement, advisories which LINO provides online, telephonically or on site against remuneration, are regulated by the latest valid LINO price list.
18.2 LINO is entitled to charge the agreed fees for required advisory services, which are however not entirely called upon by the customer, or not in due time, for reasons for which it is liable.
V. Seminars and training courses
19.0 Description of the services
19. 1 LINO can offer seminars within its own seminar events and training courses. Training courses can also be provided under a special training agreement.
20.1 Seminars and training courses are chargeable on a fee basis according to the LINO price list valid for the time being. In divergence of the payment terms and conditions in Section VIII, the fees for seminars become payable 14 days before the holding of the seminar.
21.0 Customer cancellations
21.1 Applications can be cancelled up to 4 weeks before the commencement date of the seminar, without incurring cancellation charges. When the cancellation request is made within such 4 weeks up to the 2nd week before commencement date, then 50% of the seminar fee is payable. The entire fee is payable for cancellations within 14 days of the commencement date. Independent of the foregoing stipulations, a replacement participant can be introduced for a cancelling participant.
22.0 LINO seminar cancellations
22.1 LINO however reserves the right to cancel a seminar up to 14 days before commencement date. Should a cancellation be made by LINO after this point in time, then a restricted indemnity will be payable for participants to recover travelling expenses, which cannot be cancelled. Evidence will be required of such inability to cancel travel.
23.1 LINO conducts its seminars with suitable lecturers. There is no claim to any certain named lecturer.
23.2 Should however a certain named lecturer be desired, then such a case is to be contractually arranged. Should such a specific nominated lecturer not be finally available on important grounds, then LINO can provide a suitable replacement. Customers then have no claim to indemnity against LINO in such cases.
24.0 Seminar content
24.1 The customer is entirely liable for the selection of the seminar and for the anticipated success derived from the content. All seminars are conducted in suitable training roomspace of LINO, or of contractors retained by LINO. LINO is however not liable for certain particular equipment or techniques, and also not for technical deficiencies arising during the seminar.
VI. Delivery of the software, hardware and accessories
25.0 Description of the services
25.1 LINO sells software, hardware und appropriate accessories. The stipulations of Section III are analogously applicable for the requisite advisory services for the software and hardware. The servicing and maintenance of the hardware is not a subject matter of this agreement or contract, and can be contracted especially with LINO separately.
25.2 The product descriptions and prices indicated in brochures and similar documentation, such as illustrations, technical drawings, descriptions, dimensions, weights, performance- and consumption –details, as well as indications of the usability of equipment for new technologies, are non-binding and subject to confirmation, unless specifically referred to as legally binding. LINO hereby reserves the right to undertake technical and constructional, usually commercial alterations and changes to the subject matter of the supply, in so far as such do not unnecessarily encroach upon the customer and not affect the usability of the subject matter of the purchase.
26.0 The passing of the perils
26.1 The perils pass to the customer as soon as LINO relinquishes the goods to a forwarder, haulier or other person retained by LINO for the delivery of the consignment. When the consignment is delayed or impossible without any culpability on the part of LINO, the perils pass to the customer upon notification of the readiness of the consignment for delivery.
26.2 The charges for an agreed transportation and the insurance premiums are to be borne by the customer, unless otherwise agreed.
27.0 Due date deadlines and partial deliveries
27.1 Partial deliveries of goods and the partial rendering of services are to be permissible, provided such are reasonable for the customer.
27.2 Delivery dates of goods and due date service provision dates are binding when agreed in writing. These are however subject to the due date reception of own deliveries and services from suppliers, as well as unforeseen circumstances and hindrances, independent of whether such occur at the premises of the suppliers or at LINO, and include in particular force majeure (Act of God), measures of the state authorities, failure of the authorities to issue the appropriate permits, industrial action of all nature, sabotage, scarcity of raw materials, or the non-culpability of LINO for delayed supplies of materials. Such circumstances have the effect of extending delivery dates correspondingly and even when these occur during an already existent delay. Any possible time period for compliance set by the customer is to also to be extended by the time period of the suffered delay. LINO also reserves the entitlement to withdraw from the agreement or contract, when any of the foregoing causes of delay persist for more than 6 weeks, and LINO is not liable for such.
28.0 Reservation of ownership rights
28.1 All deliveries made by LINO are subject to the reservation of ownership rights. The ownership rights only pass to the customer when it has paid all open accounts of LINO for supplies and services. The customer is not entitled to mortgage, pledge or assign goods under reservation of ownership rights. In case of any attachment attempts of third parties, the customer is to notify the third parties of the reservation of ownership rights and also inform LINO with immediate effect.
28.2 Should the customer fail to address its contractual duties of payment, then LINO is entitled to recover the subject matter supplied for securing its rights, provided LINO has given due notification to the customer and set the customer a time period for compliance. All assertions of ownership rights do not represent a withdrawal from contract. The Customer must then give permission to LINO to enter the business premises of the customer, and in particular the roomspace where the subject matter under reservation of ownership rights is located.
28.3 When the customer is a reseller, then the onward sale of the goods under reservation of ownerships rights is permitted in the normal course of business. The customer hereby and now cedes to LINO all its future accounts receivable on its own customers, to the extent of the value of the goods supplied by LINO under reservation of ownership rights.
28.4 Except in the case of the onward sale to others of the goods supplied by LINO under reservation of ownership rights, the customer is required to insure for the value of the residual goods under reservation of ownerships rights located on its premises, and in cases of indemnity for loss or damage thereto, to cede such indemnity to LINO.
29.0 Liability for deficiencies
29.1 Software – Notice is hereby given, that it is essentially not always possible to exclude all errors in the data processing programs, under all conditions of application. The customer is liable for the selection of the programs and also that the program functions satisfy its requirements, and work together throughout the selection of functions made by the customer. LINO warrants, that the program supplied corresponds with the program and description of functions made available to the customer on the date of the conclusion of the contract, and is workable within that scope.
29.2 Hardware, accessories and sundry goods supplied – Deficiency complaints on expendable subject matter entitle the customer to diminution. In cases of subject matter not expendable, the stipulations of Sub Art. 29.3 are correspondingly applicable. Within the scope of a warranty claim, LINO is entitled to replace equipment or parts and to include technical changes. All replaced equipment and parts become the property of LINO. Liability for deficiencies does not however cover the rectification of errors or the extra expenditure involved, which may be caused by external influences, operational mistakes and alterations not undertaken by LINO and/or additions and installations. No liabilities for deficiencies exist for normal wear and tear, in particular of disposables and operational mediums.
29.3 Commonalities (software, hardware, accessories and sundry goods supplied)
29.3.1 A deficiency complaint is to be made immediately and as precisely as possible following the initial malfunction, and a fault report is to be made to LINO in writing, including an indication of the operational steps leading to the malfunction
29.3.2 When a deficiency occurs, LINO is entitled to select to rectify the deficiency or to supply a deficient-free subject matter (subsequent subsidiary completion). The prerequisite is that the deficiency is not considerable. Subsequent subsidiary completion is undertaken for software by means, as rule of an update or the supply of a deficiency-free program version.
29.3.3 Should either one or both the subsequent subsidiary completions be impossible or disproportionate, then LINO is entitled to refuse to carry these out. LINO can also refuse to carry such out when the customer fails to comply with its contractual duties of payment towards LINO, to an extent equal to the deficiency-free part of the services to be rendered. Should a subsequent subsidiary completion not be successful within 3 months of complaint, or it is impossible because of the characteristics of the goods, then the customer can select the entitlement of diminution or withdrawal. Indemnities for loss or damage are excluded, unless otherwise stipulated under Sub Article 29.3.4.
29.3.4 Should LINO culpably perpetrate an infringement of a material contractual duty (a co-called ‘cardinal’ contractual duty), the loss or damage is limited to the contractually typical, foreseeable loss or damage, but to a maximum of EUR 10,000.00 for each and every occurrence of loss or damage per customer. Otherwise liability is excluded hereby. Limitations of liability or restrictions of liability are not valid in case of death or injury to persons or encroachments upon their health, or any other loss or damage because of premeditation or gross negligence in the event of infringements of contractual duties. Such limitations or restrictions do also not apply for product liability or guarantees or assurances when any one deficiency triggers the liability.
29.3.5 All claims for subsequent subsidiary completion, indemnities for loss or damage and reimbursement of expenditure become statute barred one year after the date of acceptance. Claims for diminution and exercise of the entitlement of withdrawal are excluded when a claim for subsidiary completion is statute barred. In cases of used subject matter, no liability for deficiencies will be admitted. LINO is only liable for statements made, in particular in advertising, which it employs for own purposes, or expressly includes into an agreement or contract.
29.4 The transportation or consignment of deficient goods to the corporate domicile postal address of LINO, is at the risk of the customer.
29.5 The ceding of deficiency claims to third parties is excluded. If the customer sells the goods to third parties, it is not permitted to refer to LINO because of associated binding statutory and/or contractual obligations.
29.6 The customer is to remunerate LINO for the expenditure occurring for repairs in accordance with the price list for services by personnel, when a complained deficiency is caused by a handling-, operating- or entry error, or by running the system with a non-approved operating system contrary to contract, or with any other third-party programs, or when the control measures were unobserved, or when the customer attempts erroneous or faulty repair routines. This stipulation also applies correspondingly where subsequent subsidiary completion by LINO is made difficult, hindered or then essentially extended by reason of the foregoing errors-/ faults.
VII. Internet services
30.0 Description of services
30.1 LINO internet provisions include the following services: LINO permits the customer to use online tools of other manufacturers for presentation purposes and for ascertainment of errors.
31.0 Agreement duration and regular notices to terminate
31.1 Unless otherwise agreed, an agreement is for an indeterminate period of time, but for at least 12 months. The date for the commencement of an agreement is either, the date when the customer signs an order form, an order confirmation or agreement and is received then by LINO, or the commencement date is when access is authorized, for example.
31.2 Unless otherwise agreed, three months’ notice to terminate an agreement can be given to take effect at the end of any one month. Sentence 1 of this present Sub Article is applicable for the termination of individual services, processes, etc..
32.0 Termination by LINO on materials grounds going to the root of the agreement or contract
32.1 LINO can terminate an agreement with immediate effect without observing a time period of notice when the customer uses the software contrary to agreement, in particular when it allows third parties to use the software without the permission of LINO, or undertakes alterations on the entire system or on individual modules. The same applies for any other grievous contractual infringements, in particular when the customer is in arrears of payment of at least one monthly license fee on two consecutive occasions. LINO is also entitled to terminate without notice when the customer culpably infringes the stipulations of Sub Articles 33 to 34 and continues the infringement even after having been reminded.
33.0 Liabilities of the customer
33.1 The Customer assures LINO, that its indications to LINO are correct and complete. The customer binds itself to notify LINO of any changes with immediate effect and to confirm to LINO again within 15 days of the current correctness.
33.2 The customer binds itself to keep secret all passwords communicated by LINO for accessing the services and inform LINO with immediate effect as soon as it is aware, that unauthorised third parties are in possession of the password. Should third parties be able to use the services due to the fault of the customer by subsequent misuse of the password, then the customer is liable for remuneration of use by the third party and indemnities for loss or damage. Use by third parties will require the prior written permission of LINO.
33.3 The customer is hereby notified, that the customer is obliged to make a backup at the end of each working day when the data volume has been altered by it, or by its vicarious agents. The customer is to make an entire backup in particular before the commencement of any work carried out by LINO, or before the installation of supplied hardware or software.
34.0 Operational security
34.1 The customer is liable for maintaining the necessary material and technical prerequisites for the provision of the LINO internet service. The use of the LINO internet service is only permissible within the scope permitted by LINO.
35.0 Data protection
35.1 LINO hereby notifies, that personally referred data can be stored by LINO for purposes of executing an agreement or contract.
35.2 LINO is entitled to process and use the personally referred data of its customers when this is necessary for advising customers, for advertising, market research and for own purposes for the required configuration of its services. LINO will provide complete information to the customer on demand of its personally referred data free of charge. The customer is not obliged to give its approval to this stipulation.
35.3 LINO hereby draws the attention of the customer to the fact, that data protection for data transmissions via open public networks such as the internet, cannot be comprehensively ensured with the current state-of-the-art of technologies. The customer is aware, that LINO is able to view on its website, not only the stored website pages and offerings, but also the other stored data of the customer for example. It is also possible, that other internet users can, under circumstances be technically in a position to circumnavigate the website network security unauthorised, and monitor the accessing and the messages. The customer is therefore itself liable for the care and security of data transmitted via the internet and data stored on webservers.
36.0 Fees, invoicing and settlement
36.1 The invoicing of the use of the LINO internet services will be made at the beginning of the month for the entire month in advance, in which the services are used. The full monthly fee will also be charged for the first monthly of use of the services, even when not full, independent of the day of the month when the use of the services is commenced.
36.2 LINO is however entitled only to provide the services after receipt of the monthly fee. In cases of arrears of payment, LINO is to be entitled to deactivate the relative online tools of the customer. Should the suppliers of LINO alter their prices or methods of billed settlement, then LINO is also to be entitled to adjust the fees of its customers correspondingly, as of the date of the alterations made by its suppliers, without having to give any time period of notice.
VIII. General conditions of business for all agreements and contracts
37.0 The conclusion of an agreement or contract and the written form
37.1 The details of all the services to be provided by LINO are shown in written agreements or contracts. An agreement or contract with LINO is erected upon the issuing of a written confirmation of order by LINO. Any order signed by a customer is also legally binding. LINO is entitled to accept an order – and the offer of a customer to make an agreement or contract with it – within 4 weeks by the issuing of a written order confirmation. A consignment of goods to the customer as well as the invoicing also represent a written confirmation of order, in this regard.
37.2 Written offerings or tenders by LINO are validly binding for 30 days, unless otherwise agreed in writing. The date of the offering is definitive in this regard.
37.3 All alterations and supplementations are to require the written form.
38.0 Prices and terms and conditions of payment
38.1 All prices are understood to be net, plus the current statutory rate of German Federal value-added tax.
38.2 In cases of the written acceptance of an offering made by LINO, the net prices are determined by the offering accepted within the foregoing time periods; otherwise the prices are determined by the price and product list prevailing at the date of acceptance by LINO of an order, in the absence of any otherwise written agreement. All prices are to be understood as net before the addition of travelling expenses, transportation charges, insurance premiums, and any other sundry additions.
38.3 Any estimated prices indicated in order forms or order confirmations for services in time periods and on the basis of materials supplied, are not legally binding. These are based on the best possible evaluation of the services to be rendered, to the best of the knowledge and belief of LINO. Should the estimates be subsequently exceeded, then LINO will notify the customer with immediate effect and require its written approval. Up to the date of written receipt of approval from the customer, LINO will not consign volumes exceeding the estimated prices.
38.4 One-off payments (single user fees for software, the purchase price of hardware, fixed prices for individual services rendered, etc.) are due for payment for the delivery of goods or the rendering of the service, 10 days after receipt of the relative billing, without any deductions.
38.5 In cases of invoicing for specific periods of time and on the basis of materials supplied, or monthly user fees (e.g. user fees for software, or service & maintenance fees), LINO will present the customer with a monthly billing for the contractual services rendered or supplies delivered. The customer authorises LINO to collect the accounts receivable of customers under an agreement or contract by bank account direct debit.
38.6 All complaints by customers on billings received from LINO can only be asserted in writing within a cut-off-/-exclusion time period of 14 days after receipt of invoice. Complaints received later will be considered as acceptance. The statutory rights of customers for justified complaints asserted after the expiry of the 14 days exclusion time period, remain however unaffected hereby.
38.7 LINO is entitled hereunder, to alter its charges during the billing of ongoing monthly fee arrangements. Such changes will be notified to customers in writing with a time period of notice of four weeks. Customers for their part are entitled to give extraordinary notice to terminate the agreement or contract, by observing a time period of notice of two weeks from the date of receipt of the notice of the increase. Increases by LINO notified at the date of the order, do entitle customers to an extraordinary entitlement to terminate an agreement or contract.
38.8 Increases in purchase prices will be communicated to customers and apply from the date of receipt of the notice. Customers can then withdraw from an agreement or contract within one month concerning the contractual subject matter affected. Price increases do not however apply, when the time period for rendering the service or supplying the goods is agreed to be less than one month.
38.9 The failure by customers to comply with terms and conditions of payment, arrears or circumstances destined to reduce the creditability of the customer, will cause LINO to require the immediate settlement of all outstanding financial claims against the customer. This legal remedy will also obtain, when the customer pays by monthly instalment, and is in arrears of an amount exceeding an agreed monthly instalment and when the amount in arrears represents at least 10% of the total purchase price. In cases of complete refusal to settle, LINO can withdraw from the agreement or contract and assert indemnities for loss or damage.
38.10 Customers can assert no retention rights on matters outside of the immediate item of business involved. Customers may only offset a financial claim against a financial claim of LINO when the former is either undisputed or judicially confirmed.
39.1 All delivery time periods for services rendered and goods supplied are legally binding when given in writing.
39.2 Events of force majeure entitle LINO to postpone the fulfillment of its obligations for the duration of the hindrance by a reasonable start-up time. Force majeure includes strikes, lockouts and such circumstances that make the fulfillment of performance appear unreasonable or impossible.
39.3 Should LINO be in arrears of the fulfilling of a contractual duty, customers can set LINO a prior time period of grace of at least four weeks in writing for compliance, and when this is unsuccessful can thereafter withdraw from an agreement or contract and assert indemnities for loss or damage.
39.4 Withdrawal from agreements of ongoing indebtedness, e.g. license agreements, servicing- and maintenance agreements and rental agreements, by immediate termination without observation of a time period of notice, and otherwise by withdrawal from agreement-/ contract.
39.5 Otherwise, unless mandatory or statutory liabilities obtain as per Art. 42 (sundry liabilities), any assertions of indemnities for loss or damage, or indemnities for expenditure incurred by customers for non-fulfilment or delayed fulfilment, and any form of consequential losses, are excluded hereby.
39.6 Any indemnities for loss or damage other than those mentioned in these GCBs are excluded, no matter on whatsoever grounds.
40.0 Sundry Liabilities
40.1 LINO is liable for premeditation and gross negligence in accordance with statutory requirements. LINO is only liable for slight negligence when an essential contractual duty is infringed (a so-called ‘cardinal’ contractual duty) or in cases of arrears or impossibility. In case of liability for slight negligence, the liability is limited to typical or foreseeable loss or damage but only up to a maximum of EUR 10,000.00 each and every claim and customer. The currently valid prices and price list of LINO are definitive as of the date of the assertion of a claim. Liabilities for missing guaranteed or warranted characteristics, for fraud, for death or injury to persons and encroachments upon their health and any legal defects remain unaffected by the foregoing, as well as claims asserted under the product liability legislation.
40.2 Indemnities for loss or damage because of the loss of stored data are excluded when the loss or damage would not have occurred, if the customer had undertaken regular data backups.
41.0 Termination and notices to terminate
41.1 Unless otherwise declared and agreed, an agreement or contract can be terminated by either of the parties at any time by observing a time period of notice of one month. Notices to terminate are to require the written form.
41.2 The entitlement of either party to terminate an agreement or contract on material grounds going to the root of the contractual relationship, remains unaffected by the foregoing, without observing a time period of notice.
42.0 Sundry stipulations
42.1 Applicable law, place of fulfilment and place of jurisdiction
All business relationships of LINO with customers are solely governed by the laws of the Federal Republic of Germany, to the exclusion the United Nations ‘CISG’ Convention on Contracts for the International Sale of Goods. The place of fulfilment for the sale of goods and the rendering of services is agreed as the place specified in any one agreement or contract. In case of doubt, this is the place of the corporate domicile or registered office of LINO. When a customer is a registered trader, then the statutory requirements apply.
42.2 Fail-Safe Clause: Should any one stipulation of these GCBs be or become invalid in whole or in part, then this is not to affect the effectiveness of the remaining stipulations. In replacement of an ineffective or non-executable contractual stipulation, or for the purposes of rectifying loopholes, the parties are to select a legally effective stipulation coming closest to that which they would have intended when they concluded the agreement or contract.