General Terms and Conditions
Article 1 – Applicability
1.1 Contracts concluded between STARFACE GmbH (in the following, “STARFACE”) and an entrepreneur as defined in Section 14 of the German Civil Code (in the following, “Customer”) are subject exclusively to these General Terms and Conditions unless a more specific agreement has been concluded in writing between the two parties. Other terms and conditions of the Customer only apply if they have been acknowledged in writing by STARFACE. These General Terms and Conditions of STARFACE are published on the Internet at www.starface.com and will also be sent on request. They also apply to all future legal transactions with the Customer. Oral pledges and ancillary agreements must be confirmed by STARFACE in writing. Contracts between STARFACE and a consumer (as defined in Section 13 of the German Civil Code) are subject to the corresponding statutory provisions.
1.2 The Customer will be notified in writing, by fax, or by email of any changes to these General Terms and Conditions. Unless the Customer objects to a change within four weeks after receiving notification of it, it will be assumed that the Customer has accepted it. The Customer will be separately informed of their right to object an amendment to these Terms and Conditions and the legal consequences of refraining from doing so.
Article 2 – Subject of the Contract
STARFACE develops and sells software-based IP telephone systems. The subject matter of the Contract is the sale and provision of complete software systems (software and hardware) and accessories on a subscription basis (STARFACE 365). STARFACE offers various services for its products.
Article 3 – Performance
3.1 Sale or provision of complete systems, software, and updates on a subscription basis
The content and scope of the delivered merchandise are as described in each case.
3.1.1 Sale and go-live of complete systems
If STARFACE is contracted to install the entire system and take it live, it is up to the Customer to meet the space, technical, and other requirements for getting the system and telephones ready to operate.
3.1.2 Sale of Software
The Customer receives a simple, nonexclusive right to use the acquired software for an unlimited period of time within the contractually agreed scope. For this purpose, the Customer receives a copy of the software and a corresponding manual in digital form that is exclusively intended for its own use.
3.1.3 Conclusion of an Update Contract
In order for the Customer to consistently receive and use the newest available version of the STARFACE software, it is necessary for them to conclude a corresponding update agreement with STARFACE. If payment is not made on time, STARFACE may discontinue the update service until full payment has been made.
3.2.1 If STARFACE provides support for the STARFACE software used by the Customer without concluding a support agreement, the work involved is charged on a time basis in units of 15 minutes each.
3.2.2 If the parties conclude a support agreement, STARFACE provides services as defined in detail in that agreement. The prior conclusion of an update agreement is a prerequisite for concluding a support agreement. If the Customer is in arrears with payment, STARFACE may withhold its support services until full payment has been made.
3.3 Partner Agreement
A partner agreement must be separately concluded and signed. It covers distribution of the STARFACE product family (software, hardware, and services) and provision of software updates and support agreements.
3.4 Cloud Computing Agreement
STARFACE offers cloud storage space and services to its partners via the Internet for the use of STARFACE software and hardware. It is necessary to additionally conclude a separate cloud computing agreement for the STARFACE cloud. As a prerequisite for doing so, the partner must first be certified as a STARFACE Certified Partner. The additional agreement covers the rights and obligations of each party.
Article 4 – Conclusion of the Contract and Binding Digital Declarations of Intent
4.1 This contract enters into effect when it is signed, when a written order confirmation is received from STARFACE, when the merchandise and/or services are received, or when the Customer acknowledges the provisions of the corresponding contract by logging in at https://www.starface.de/portal/login.php?lang=en and offering to conclude a STARFACE contract by activating the order button, and STARFACE then accepts in writing or by email.
4.2 The Customer acknowledges that their digital declarations on the STARFACE partner website express their agreement to conclude and be bound by this contract and make corresponding payments for this contract and transactions. By agreeing, they declare their intention to be bound by digital declarations. This consent extends to all documents related to all transactions they engage in under the STARFACE contract, including notices of cancellation and termination. The Customer is responsible for obtaining any hardware or software that may be required to access and store digital documents resulting from this contractual relationship.
Article 5 – Deliveries and Services
5.1 STARFACE has the right to provide partial deliveries and services and invoice them accordingly unless otherwise agreed in writing.
5.2 Agreed delivery dates or times of performance are considered to have been met if the contractual product is turned over to the carrier by the agreed delivery date or if performance by the agreed date has been offered, unless otherwise specifically agreed in writing.
5.3 If STARFACE fails to deliver as or when contractually agreed, the Customer must grant STARFACE an additional grace period for doing so. Otherwise the Customer forfeits their right to withdraw from the contract.
5.4 The delivery date and the time of performance are agreed based on STARFACE’s expected capacity, which can change as a result of unforeseen circumstances and impediments at STARFACE or the manufacturer, such as force majeure, government actions, failure to obtain official permits, labor disputes, sabotage, shortages of raw materials, or tardy delivery of materials that is not the fault of STARFACE. When events of these kinds occur, the delivery date is extended correspondingly, also if they occur during a delay caused by other circumstances. If STARFACE is late with a delivery, the Customer is entitled to withdraw from the part of the contract that has not yet been fulfilled, subsequent to a reasonable grace period that has been granted to STARFACE in writing.
5.5 Unless otherwise agreed, STARFACE is entitled, but not obliged, to insure the goods to be shipped against shipping risks of all kinds at the Customer’s expense. Neither this nor a possible assumption of the shipping costs has any affect on the transfer of risk.
5.6 Agreements to postpone the date and time of delivery or performance must be made in writing. If either or both are postponed by more than four weeks at the Customer’s request, STARFACE is entitled to demand from the Customer prepayment of 50% of the value of the order.
Article 6 – Legal Consequences of Cancellation and Refused or Delayed Acceptance
If the Customer cancels all or part of an order that has already been confirmed by STARFACE without being entitled to do so, or if the Customer refuses to accept all or some of ordered merchandise without justification despite having granted a 10-day grace period, STARFACE may withdraw from all or part of the contract without extending the deadline any further, notwithstanding the requirements of Section 323, Para. 2 of the German Civil Code, and to demand lump-sum compensation from the Customer amounting to 30% of the value of the contractual goods that have been cancelled or rejected. The Customer may present proof that the damages suffered by STARFACE are significantly lower than the lump-sum compensation claim. STARFACE is also entitled to calculate the actual damages resulting from the Customer’s cancellation or refusal to accept delivery. This does not rule out possible additional entitlements of STARFACE.
Article 7 – Acceptance and Transfer of Risk When Selling Merchandise
7.1 Immediately after receiving the merchandise, the Customer must carefully examine it to ensure that it is complete and corresponds to the invoice. If no complaint is made within a period of eight days after taking delivery, the Customer is presumed to have accepted it. Any complaint made must contain a precise description of the identified defects. The Customer also has this obligation if the merchandise is intended for resale. Discernable defects must be reported in writing to the forwarding company, post office, railway etc. immediately after accepting the merchandise from them. In the case of hidden defects, the countdown on the mentioned eight-day deadline begins when these are first identified. After this period has expired, no complaints on defects will be honored.
7.2 The Customer may not refuse to accept a delivered product due to insignificant defects that do not prevent it from functioning properly.
7.3 The risk is transferred when a contractual product is passed to a carrier, parcel/postal service, or agent. This also applies to merchandise that is returned after remedying a defect or performing a service for a fee.
Article 8 – Prices and Terms of Payment
8.1 The prices calculated on the basis of the currently valid price lists and offers are ex-warehouse. The Customer is also charged for any value-added tax or other statutory duties due in the country of delivery, as well as for packaging, shipping costs, and shipping insurance.
8.2 Payments are due in full within 14 days after receiving the invoice. The invoice is delivered together with the merchandise. Bills of exchange and checks are only accepted on a provisional basis.
8.3 STARFACE sends invoices to the Customer by email. At the Customer’s request, STARFACE can also send the invoice by regular mail. The costs incurred for this are then borne by the Customer.
8.4 STARFACE is entitled to use the Customer’s payments to cover any preexisting debts first, even if the Customer’s own terms reject this possibility. If costs and interest have also accumulated as a result of previous defaults or delays, STARFACE is entitled to use payments to cover first the costs, then the interest, and only then the more recent invoices.
8.5 The Customer may not offset payments or exercise a right of retention against counterclaims that STARFACE has not acknowledged or whose validity has not been legally established.
8.6 If the Customer misses the payment deadline specified in Section 8.2 or a payment deadline agreed separately with STARFACE in writing, any and all claims by STARFACE to payment within the scope of its business relationship with the Customer are due immediately, even if STARFACE has previously agreed to payment by instalments.
Article 9 – Retention of Title
9.1 STARFACE retains ownership of merchandise provided to the Customer until all claims accruing to STARFACE vis-à-vis the Customer on the basis of their business relationship have been fully settled.
9.2 Subject to revocation, the Customer may in turn make merchandise to which STARFACE retains title available to third parties within the scope of its orderly business activities, but not use it as a security for a loan or otherwise mortgage it in any way. If third parties have access to merchandise that is subject to retention of title, the Customer must inform them that it is the property of STARFACE and notify STARFACE of this in writing. In the event of resale to a third party, the Customer is responsible for ensuring that the other party honors STARFACE’s rights. If the Customer fails to do so, it is liable to STARFACE for any damages.
9.3 If the Customer defaults on payment or its business fails, STARFACE may enter the Customer’s business premises to recover merchandise that is subject to retention of title without needing to set an additional deadline or comply with any of the other conditions specified in Section 323 (2) of the German Civil Code.
9.4 If STARFACE recovers contractual goods from the Customer or third parties while exercising its retained rights of title, this does not automatically result in withdrawal from the contract.
9.5 When placing an order, the Customer relinquishes any and all claims arising from the transfer of merchandise subject to retention of title to third parties to STARFACE in advance and with immediate effect, based on the invoiced amount. The Customer is entitled and obliged to collect the sums owed in the ordinary course of business. At STARFACE’s request, the Customer must specify the transferred claims. STARFACE may disclose this information in order to secure payments owed to it if the Customer is in arrears with payments or its business is failing.
9.6 If the value of the securities exceeds STARFACE’s entitlements to payment by more than 20%, STARFACE will release the excess to the Customer at its request.
9.7 Items provided for testing and demonstration purposes remain the property of STARFACE. They may only be used by the Customer on the basis of a separate agreement with STARFACE. Additional claims by STARFACE are not excluded by this.
9.8 If a partner of STARFACE has concluded a contract with a Customer in accordance with number 3.3 of these terms and conditions, the partner must also agree with the Customer on the preceding provisions on retention of title.
Article 10 – Warranty
10.1 If delivered merchandise is defective, the Customer is entitled, within the scope of the applicable statutory provisions, to request rectification, which can take the form of eliminating the defects or supplying other, defect-free merchandise. STARFACE may freely choose between these options.
10.2 In order to exercise any and all warranty rights, the Customer must meet all of its obligations under Section 377 of the German Commercial Code to inspect the merchandise and ensure that it is free of defects.
10.3 Information provided by STARFACE on its merchandise and services is limited to its condition and characteristics. Technical data and descriptions of products provided in documents do not by themselves constitute a promise or guarantee of any particular properties. These are only assured or guaranteed in the legal sense if STARFACE confirms the information concerned in writing.
10.4 The parties are aware that, in view of the current state of the technology, it is not possible to completely rule out the presence of bugs in the software under all operating conditions. STARFACE does not guarantee that program functions will be sufficient to meet the Customer’s requirements or work together in a particular configuration selected by the Customer.
10.5 In particular, the warranty excludes defects or damage caused by wear and tear during operation, improper use, operating mistakes, use of an incorrect current or voltage, fire, lightning, explosions, network-related overvoltage, moisture of any kind, or any component that is subject to wear. The warranty is also voided if the serial number, type designation, or similar marks are removed or rendered illegible.
10.6 The warranty does not apply if the Customer or a third party has changed the delivered goods or services, unless they can prove that these changes have not caused the defect.
10.7 These warranty claims against STARFACE begin with delivery of the item and expire after 12 months, except in the event of claims for damages. They are not transferable. Independently of this, STARFACE fully passes on any guarantee or warranty commitments by the manufacturer to the Customer without accepting responsibility for them itself.
10.8 If STARFACE reviews a report on defects and determines that no warranty claims exist, it is entitled to reimbursement for all associated expenditures.
10.9. No warranties apply to delivered demonstration devices and used products.
10.10 The above-mentioned warranty constraints do not apply if STARFACE has acted willfully or with gross negligence, maliciously concealed a defect that was causing a problem, or guaranteed the quality of the merchandise.
10.11 If a contractual partner of STARFACE concludes a contract with a customer in accordance with no. 3.3 of these provisions, that partner is also obliged to conclude an agreement with the Customer on the preceding provisions on warranty rights if the Customer is an entrepreneur as defined in Section 14 of the German Civil Code.
Article 11 – Warranty on Rental Contracts
11.1 STARFACE makes leased software, modules and/or third-party hardware and software available for the contractually agreed time period. STARFACE will provide and maintain the software and hardware in a contractually compliant state.
11.2 Information provided by STARFACE on products and services is purely descriptive. Technical data and descriptions of products do not by themselves constitute promises of specific properties or provide a corresponding guarantee. An assurance of properties or a guarantee only exists if STARFACE has explicitly confirmed it as such in writing.
11.3 The parties are aware that, given the current state of technology, it is impossible to completely rule out bugs in the software in all application situations. STARFACE does not guarantee that program functions will meet the partner’s requirements or work together properly in a combination selected by the partner.
11.4 No-fault liability for defects that existed before the contract was concluded is excluded. STARFACE is not liable for any defects that it has not caused intentionally or as a result of gross negligence.
11.5 The partner is required to support STARFACE in identifying and remedying any defects, and must permit the immediate inspection of documents describing the details of how a defect occurred.
Article 12 – Liability
12.1 STARFACE is liable to the Customer for intent and gross negligence. STARFACE is also liable for neglecting obligations that must be met in order to properly execute the contract and which, if breached, would jeopardize achievement of the contract’s purpose, on which the Customer relies. In the latter case, STARFACE is only liable for foreseeable damages of types typically associated with contracts of this kind. STARFACE is not liable for minor negligent breaches of obligations apart from those mentioned in the foregoing.
12.2 The above exclusions of liability do not apply in cases of loss of life, bodily injury, or harm to health. Liability under the German Product Liability Act remains unaffected.
12.3 The Customer is responsible for regularly backing up their data and software. Liability for loss of data is therefore limited to the recovery effort that would be required when backups appropriate to the risks have been regularly performed.
13. Export- und Importgenehmigungen
13.1 Von STARFACE gelieferte Produkte und technisches Know-how sind zur Benutzung und zum Verbleib in dem mit dem Kunden vereinbarten Lieferland bestimmt. Die Wiederausfuhr von Vertragsprodukten -einzeln oder in systemintegrierter Form- ist für den Kunden unter Umständen genehmigungspflichtig und unterliegt den Außenwirtschaftsvorschriften der Bundesrepublik Deutschland bzw. des anderen mit dem Kunden vereinbarten Lieferlandes. Der Kunde muss sich über diese Vorschriften selbständig nach deutschen Bestimmungen beim Bundesamt für Wirtschaft, 65760 Eschborn/Ts 1, nach US-Bestimmungen beim USDepartment of Commerce, Office of Export Administration, Washington, D.C. 20230 erkundigen. Unabhängig davon, ob der Kunde den endgültigen Bestimmungsort der gelieferten Vertragsprodukte angibt, obliegt es dem Kunden in eigener Verantwortung, die ggf. notwendige Genehmigung der jeweils zuständigen Außenwirtschaftsbehörden einzuholen, bevor er solche Produkte exportiert.
13.2 Jede Weiterlieferung von Vertragsprodukten durch Kunden an Dritte, mit und ohne Kenntnis von STARFACE, bedarf gleichzeitig der Übertragung der Exportgenehmigungsbedingungen. Der Kunde haftet für die ordnungsgemäße Beachtung dieser Bedingungen gegenüber STARFACE.
Article 14 – Data Protection
14.1 All personal data provided by the Customer (salutation, name, address, date of birth, email address, telephone number, fax number, bank details, credit card numbers) will be used exclusively in compliance with the provisions of German data protection laws.
14.2 Personal data, to the extent that they are required for establishing, defining the details of, or modifying a contractual relationship, are used exclusively for performing contracts concluded between STARFACE and the Customer, e.g. for delivering goods to an address specified by the Customer. Any other use of these data for advertising, market research, or adjusting STARFACE’s offering requires the Customer’s explicit consent. It is completely voluntary to provide this consent and it may be revoked at any time.
14.3 The personal data that are required in order for the Customer to pay for and take advantage of STARFACE’s offerings are initially used exclusively for executing the concluded contracts. They include information for identifying the Customer as a user, information on the start, end, and scope of each use, and information on the telecommunications media that the Customer employs. STARFACE will also use these data for advertising or market research purposes and/or to tailor STARFACE’s telecommunications offering by creating utilization profiles with pseudonyms. The Customer has the right and ability to object to this use of their usage data.
14.4 14.4 If the Customer requires any additional information or wishes to view or revoke the consent that they have explicitly provided for STARFACE to use their usage data, they can contact a STARFACE employee by calling +49 721 1510 420 or sending an email to firstname.lastname@example.org.
Article 15 – General Provisions
15.1 The Customer is not entitled to reassign their rights under this contract to any third parties.
15.2 The place of performance and jurisdiction for all disputes arising from or in connection with this contract is Karlsruhe, Germany if the Customer is a merchant, a legal entity under public law, or a special fund under public law. However, STARFACE is also entitled to sue such a Customer at any other legal venue.
15.3 The laws of the Federal Republic of Germany apply, while excluding the terms of the United Nations Convention on Contracts for the International Sale of Goods, the Uniform Law on the International Sale of Goods, and the Vienna UN Convention on Contracts for the International Sale of Goods.
15.4 Orders are processed with the aid of automatic data processing. The Customer hereby provides their express consent for STARFACE to store and process data that have become known within the scope of contractual relationships and are required for processing orders.
15.5 Any amendment or addition to this contract must be made in writing in order to be valid. “In writing” in the context of this contract includes by fax or registered letter.
15.6 If individual provisions of these General Terms and Conditions are or become invalid, this will not affect the remaining provisions. In such a case, STARFACE GmbH and the Customer are to agree on another, valid provision that approximates the invalid one’s business intentions as closely as possible. The same procedure applies for filling gaps.