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 Pictomio'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 Pictomio 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.
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.
7.1 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 Pictomio'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 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
According to the EU Distance Selling Directive Customers who areconsumers have the right to withdraw from this contract for two weeks starting from the date of receipt of the goods or the date of contract conclusion if the performance of a service is subject of the contract, or if later, the date when written confirmation was received, provided that there has been no face-to-face contact between the parties prior to making the contract, e.g. contracts concluded by telephone, fax or e-mail. Consumers are people acting outside their trade, business or profession and suppliers. This right is exercisable by the consumer without penalty and without having to give any reason. The consumer does not have the right of withdrawal unless otherwise stipulated by law or unless an express agreement has been reached, if subject of the contract is:
- the delivery of goods, which have been produced according to certain consumer specifications or modified to comply with consumer requirements
- the delivery of goods, which are not eligible for returns
- the delivery of audio and video recordings or software, if the delivered data carrier has been unsealed by the consumer (e.g. entry of the registration or license code of the software).
The Consumers Right of Withdrawal lapses for service contracts if PROVISIO GmbH has already commenced to perform the service with the consumer's approval prior to the expiration of the withdrawal time limit or if the consumer has induced the commencement. The withdrawal notice does not have to state a reason. The withdrawal notice must be in writing on a permanent data carrier or performed by returning the purchased product. A timely dispatch of the withdrawal notice is sufficient to comply with the withdrawal time limit. In case of timely withdrawal the consumer is no longer bound by this contract with PROVISIO GmbH. In case of withdrawal the consumer must immediately return the software product, other purchased products as well as the registration and licensing data to PROVISIO GmbH at PROVISIO GmbH's expense and risk, if the consumer has not already executed his / her right by returning the goods.
10. 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.
11. Closing Statement
11.1 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.
11.2 Place of Delivery and Payment is the company seat of PROVISIO GmbH.
11.3 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.
11.4 Any amendments and modifications to these terms and conditions need to be in writing including this clause.
11.5 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.
11.6 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.