General Terms and Conditions of STARFACE GmbH (hereinafter referred to as: STARFACE)
1. Scope of Application
1.1 For contracts between STARFACE GmbH (hereinafter referred to as STARFACE) and an entrepreneur according to § 14 of the German Civil Code (hereinafter referred to as the Customer), the following General Terms and Conditions shall apply exclusively, unless a more specific contract has been concluded in writing between the parties. Other terms and conditions of the Customer are only effective if they have been confirmed in writing by STARFACE. The General Terms and Conditions of STARFACE GmbH are published on the Internet at STARFACE, as well as sent upon request. They also apply to all future legal transactions with the customer. Verbal promises and additional agreements require the written confirmation of STARFACE. For contracts between STARFACE and a consumer according to § 13 BGB (German Civil Code), the legal provisions shall apply.
1.2 The customer shall be notified of any amendments to these Terms and Conditions in writing, by fax or by email. If the customer does not object to these amendments within four weeks after receipt of the notification, the amendments shall be deemed accepted by the customer. The customer shall be informed separately of the right to object and the legal consequences of silence in the event of an amendment to the terms and conditions.
2. Subject Matter of the Contract
STARFACE GmbH develops and sells software-based IP telephone systems. The subject matter of the contract is the sale and the provision through the subscription model (STARFACE 365) of complete software systems (software and hardware), as well as accessories. Furthermore, STARFACE offers various services for its goods.
3. Performance Description
3.1 Sale or Provision Through the Subscription Model of Complete Systems, Software and Updates The service content and scope of the delivered goods are set out in the service description.
3.1.1 Sale and Commissioning of Complete Systems If STARFACE is commissioned to produce the complete system, the Customer shall create the necessary spatial, technical and other conditions so that the system and the telephones can be made ready for operation.
3.1.2 Sale of Software
The Customer shall be granted the simple and non-exclusive right to use the purchased software for an unlimited period of time to the contractually agreed extent. For this purpose, the Customer shall be provided with a copy of the software and an accompanying manual in electronic form, which shall be exclusively for the Customer’s own use.
3.1.3 Conclusion of an Update Contract
In order to ensure that the Customer always receives the current program version for the STARFACE software they are using from STARFACE, the conclusion of a corresponding update contract with STARFACE is required, in which the services are defined. In case of payment default, the update service may be discontinued by STARFACE until full payment has been made.
3.2 Support Services
3.2.1 If STARFACE provides support services for the STARFACE software used by the Customer without having concluded a corresponding support contract, these services shall be invoiced on an hourly basis. Invoicing shall take place in ¼ hour intervals.
3.2.2 If the parties conclude a support contract, STARFACE shall provide the services defined in more detail within this contract. A mandatory prerequisite for the conclusion of a support contract is the prior conclusion of an update contract. If the Customer is in default of payment, STARFACE may suspend the performance of support services until full payment has been made.
3.3 Partner Contract
The partner contract comes into effect with the conclusion and signing of a separate partner contract. It includes the distribution of the STARFACE product family (software, hardware and services), as well as the brokerage of software updates and support contracts.
3.4 Cloud Computing Contract
STARFACE offers its partners services via the Internet in the area of the use of STARFACE software and hardware, as well as the granting of storage space upon the conclusion of a cloud computing contract in the STARFACE Cloud. A prerequisite for the conclusion of this contract is the certification of the partner as a STARFACE Certified Partner. The scope of services and the mutual rights and obligations result from the extra contract on cloud computing being concluded.
4. Conclusion of Contract and Electronic Declarations of Intent
4.1 The contract shall be concluded upon signing the corresponding contract or, in the absence of this, upon receipt of the written order confirmation by STARFACE, upon the delivery of the goods/services or as soon as the customer has taken note of the contractual provisions of the corresponding contract on the website STARFACE Partnerportal and has made an offer to STARFACE to conclude a STARFACE contract by clicking on the corresponding order button and this has been accepted by STARFACE in writing or by email.
4.2 The customer acknowledges that their electronic declarations on the website STARFACE Partnerportal of STARFACE GmbH constitute consent to the conclusion of the present contract and express their intention to be bound by this contract and to make corresponding payments for this contract and transactions. By giving their consent, he/she declares their intention to be bound by electronic declarations. The consent extends to all documents relating to all transactions he/she enters into under the STARFACE Agreement, including notices of cancellation or termination. The client is responsible for any necessary hardware and software required to access and store the electronic documents arising from this contractual relationship.
5. Deliveries and Services
5.1 The right to partial deliveries and partial services and their invoicing shall remain reserved, unless otherwise agreed in writing.
5.2 Agreed delivery dates or times of performance shall be deemed to have been complied with if the contractual product has been handed over to the carrier on the agreed delivery date or if the performance has been offered on the agreed date, unless otherwise expressly agreed in writing.
5.3 If STARFACE does not perform the delivery according to the contract or does not meet the performance date according to the contract, the Customer must grant STARFACE a grace period to perform the service. Otherwise, they are not entitled to withdraw from the contract.
5.4 The delivery date and the time of performance are agreed upon according to STARFACE’s expected performance capacity and are subject to unforeseen circumstances and obstacles, irrespective of whether they occur at STARFACE or at the manufacturer, such as force majeure, governmental measures, the non-granting of official permits, labour disputes of any kind, sabotage, shortage of raw materials or delayed material deliveries through no fault of STARFACE. Such events extend the delivery date accordingly, even if they occur during a delay that has already occurred. If STARFACE is in default with a delivery, the Customer may withdraw from the part of the contract that has not yet been delivered after the expiration of a reasonable grace period granted to STARFACE in writing.
5.5 Unless otherwise agreed, STARFACE is entitled, but not obliged, to insure the goods to be shipped against transport risks of any kind at the Customer’s expense. This and a possible assumption of the transport costs has no influence on the transfer of risk.
5.6 Any agreement on the postponement of delivery dates or the time of performance must be made in writing. If the delivery date or the time of performance is postponed by more than four weeks at the customer’s request, STARFACE is entitled to demand an advance payment of 50% of the order value from the customer.
6. Legal Consequences of Cancellation, Refusal of Acceptance and Default of Acceptance
If the Customer cancels an order confirmed by STARFACE in whole or in part without being entitled to do so, or if the Customer refuses to accept ordered contractual goods in whole or in part without justification despite a grace period of 10 days, STARFACE is entitled to withdraw from the contract in whole or in part without setting a further grace period and irrespective of the requirements of §323 para. 2 BGB (German Civil Code) and to demand a lump-sum compensation from the Customer amounting to 30% of the order value of the cancelled or non-accepted contractual goods. The Customer is entitled to prove that the damage incurred by STARFACE is significantly lower than the lump-sum compensation claim. Optionally, STARFACE is also entitled to concretely calculate the damage resulting from the cancellation or refusal of acceptance by the customer. Further rights of STARFACE are not excluded by the above provision.
7. Acceptance and Transfer of Risk in the Sale of Goods
7.1 Immediately upon receipt, the customer must carefully check the goods for completeness and compliance with the invoice. If no complaint is made within a period of 8 days after receipt of the delivery, the acceptance is deemed to have taken place. The complaint must contain a precise description of the defects complained about. The customer also has this obligation if the goods are intended for resale. Identifiable defects are to be reported to them in writing immediately upon acceptance by the forwarding company, post office, railway etc. In the case of hidden defects, the above-mentioned period begins to run from the point in time at which these first become apparent. After the aforementioned period has expired, complaints will no longer be recognised.
7.2 Insignificant defects that do not impair the functionality of the delivery item do not entitle the customer to refuse acceptance.
7.3 The risk is transferred when the contractual product is handed over to the carrier, parcel/postal service or agent. The provision also applies to returns after the defect has been remedied or the service provided for a fee.
8. Prices and Terms of Payment
8.1 The prices resulting from the currently valid price lists and offers are ex-warehouse. Statutory value-added tax and other statutory duties in the country of delivery, as well as packaging, transport costs and transport insurance, are additionally charged to the customer.
8.2 Payments are due within 14 days of invoicing without any deductions. Invoicing takes place with delivery. Bills of exchange and checks are only accepted on account of performance.
8.3 STARFACE sends invoices to the customer by email. At the customer’s request, the invoice can also be sent by post from STARFACE. The costs incurred for this are then to be borne by the customer.
8.4 STARFACE is entitled, in spite of the customer’s provisions to the contrary, to initially offset payments against the customer’s older debts. If costs and interest have already arisen due to default, STARFACE is entitled to offset the payment first against the costs, then against the interest and finally against the main services.
8.5 Offsetting or the assertion of a right of retention by the customer due to counterclaims not recognised by STARFACE or not legally established is excluded.
8.6 If the customer exceeds the payment deadline specified in Section 8.2 or a payment date agreed separately with STARFACE in writing, this means that all STARFACE payment claims arising from the business relationship with the customer are due immediately, even if STARFACE has agreed on payment in instalments for the claims.
9. Retention of Title
9.1 The contract goods delivered to the customer remain the property of STARFACE until all claims that STARFACE is entitled to against the customer from the business relationship have been met in full.
9.2 The customer is revocably entitled to pass on the goods subject to retention of title in the ordinary course of business, but not to pledge or transfer ownership in any form. If third parties access the reserved goods, the customer must point out the ownership of STARFACE and notify STARFACE of this in writing. In the event of resale to third parties, the customer is responsible for ensuring that the third party takes STARFACE’s rights into account. If the customer does not take STARFACE’s rights into account, the customer is liable to STARFACE for the damage incurred.
9.3 In the event of a default in payment or the financial collapse of the customer, STARFACE may enter the customer’s business premises to assert the retention of title on the goods subject to retention of title and take possession of the goods subject to retention of title without setting a further deadline or needing compliance with the other conditions specified in Section 323 (2) of the German Civil Code (BGB).
9.4 Insofar as STARFACE secures contractual goods from the customer or from third parties in exercising the retention of title, this does not count as a withdrawal from the contract.
9.5 The customer assigns their claims from the transfer of the reserved goods, in the respective invoice value of the reserved goods, to STARFACE in advance at the time of the order. The customer is entitled and obliged to collect in the ordinary course of business. At the request of STARFACE, the customer will name the assigned claims. STARFACE may disclose this assignment to secure its payment claims if the customer is in default of payment or financial collapse.
9.6 If the value of the collateral exceeds STARFACE’s payment claims by more than 20%, STARFACE will release the excess of the collateral at the customer’s request.
9.7 Items delivered 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. This does not exclude any further claims by STARFACE.
9.8 If a partner of STARFACE has concluded a contract with a customer in accordance with No. 3.3 of these provisions, the partner shall also be obliged to agree to the above provisions on the retention of title with the customer.
10.1 If the delivered goods are defective, the customer is entitled, within the framework of the statutory provisions, to request supplementary performance in the form of the removal of defects or the delivery of a defect-free item. STARFACE has the right to choose the type of supplementary performance.
10.2 The prerequisite for any warranty rights is that the customer properly fulfils all inspection and complaint obligations owed in accordance with Section 377 of the German Commercial Code (HGB).
10.3 Information from STARFACE about the products and services is only information on quality. The technical data and descriptions of the products in the product information alone do not represent an assurance of specific properties or a corresponding guarantee. An assurance of properties in the legal sense or a guarantee is only given if the respective information has been confirmed as such by STARFACE in writing.
10.4 The parties are aware that, given the current state of the technology, it is not possible to rule out errors in the software under all application conditions. STARFACE does not guarantee that the program functions will meet the customer’s requirements or work together in the selection made by the customer.
10.5 The warranty excludes in particular defects or damage that can be traced back to: operational wear and tear, improper use, operating errors, operation with the wrong type or voltage, fire, lightning strike, explosion or network-related overvoltages, moisture of all kinds and any consumables. The warranty is also void if the serial number, type designation or similar marks are removed or made 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 are not the cause of the defect.
10.7 These warranty claims against STARFACE begin with the delivery of the item and expire after 12 months, except in the case of claims for damages. They are not transferable. Irrespective of this, STARFACE passes on any further guarantee and warranty commitments made by the manufacturer in full to the customer without being responsible for them.
10.8 If the review of a notification of defects reveals that a warranty case does not exist, STARFACE is entitled to demand the reimbursement of all expenses. 10.9. If demonstration devices or used items are delivered, any warranty is void.
10.10 The above limitations of the warranty do not apply if STARFACE acted wilfully or with gross negligence, fraudulently concealed the defect causing the damage or assumed a corresponding guarantee for the quality of the goods.
10.11 If a partner of STARFACE has concluded a contract with a customer in accordance with No. 3.3 of these provisions, the partner shall also be obliged to agree to the above provisions on warranty rights with the customer, as long as the customer is an entrepreneur in accordance with § 14 BGB (German Civil Code).
11. Warranty for Rental Contracts
11.1 STARFACE leaves the rented software, appliances and/or third-party hardware/software to the respective partner for the contractually agreed time. STARFACE will leave and keep the software and appliances in the contractual condition.
11.2 Information from STARFACE on the products and services is only information on quality. The technical data and descriptions of the products in the product information alone do not represent an assurance of specific properties or a corresponding guarantee. An assurance of properties or a guarantee is only given if the respective information has been confirmed as such by STARFACE in writing.
11.3 The parties are aware that, given the current state of technology, it is not possible to rule out errors in the software under all application conditions. STARFACE does not guarantee that the program functions will meet the requirements of the partner or that they work together in the selection made by the partner.
11.4 No-fault liability for defects that existed before the contract was concluded is excluded. STARFACE’s liability for defects that were caused by STARFACE neither intentionally nor through gross negligence is excluded. 11.5 The partner will support STARFACE in identifying and remedying the defect and shall immediately allow the inspection of the documents from which the details of the occurrence of the defect arise.
12.1 STARFACE is liable to the customer for intent and gross negligence. Furthermore, STARFACE is liable for the negligent breach of obligations, the fulfilment of which enables the proper execution of the contract at all, the breach of which jeopardizes the achievement of the purpose of the contract and on whose compliance the customer regularly relies. In the latter case, however, STARFACE is only liable for foreseeable, contract-typical damage. STARFACE is not liable for minor negligent breaches of obligations other than those mentioned in the preceding sentences.
12.2 The above exclusions of liability do not apply in the event of injury to life, body or health. Liability under the Product Liability Act remains unaffected.
12.3 The customer is responsible for regularly backing up their data and software. The liability for data loss is therefore limited to the typical restoration effort that would have occurred regularly and the risk of data backup.
13. Export and Import Permits
13.1 Products and technical know-how delivered by STARFACE are intended to be used and to remain in the delivery country agreed with the customer. The re-export of contractual products – individually or in system-integrated form – may require approval for the customer and is subject to the foreign trade regulations of the Federal Republic of Germany or the other delivery country agreed with the customer. The customer must independently inquire about these regulations according to the German regulations at the Federal Office of Economics, 65760 Eschborn/Ts 1, according to the US regulations at the US Department of Commerce, Office of Export Administration, Washington, D.C. 20230. Regardless of whether the customer specifies the final destination of the delivered contractual products, it is the customer’s own responsibility to obtain any necessary approval from the relevant foreign trade authorities before exporting such products.
13.2 Any further delivery of contractual products by customers to third parties, with or without the knowledge of STARFACE, requires the transfer of the export license conditions at the same time. The customer is liable to STARFACE for the proper observance of these conditions.
14. Data Protection
14.1 All personal data provided by the customer (title, name, address, date of birth, email address, telephone number, fax number, bank details and credit card number) will only be used in accordance with the provisions of German data protection law.
14.2 The personal data, insofar as it is necessary for the establishment, content or modification of the contractual relationship (inventory data), is used exclusively to process the contracts concluded between STARFACE and the customer, e.g. for the delivery of goods to the address specified by the customer. Any further use of the inventory data for the purposes of advertising, market research or to tailor STARFACE’s offers requires the express consent of the customer. The declaration of consent is completely voluntary and can be revoked at any time.
14.3 The personal data that is required to enable and bill STARFACE offers (usage data) is initially only used to process the concluded contracts. Such usage data includes, in particular, the characteristics for identifying the customer as a user, information about the beginning, end and scope of the respective use and information about the telemedia used by you as a user. STARFACE will also use such usage data for the purposes of advertising, market research or to tailor STARFACE’s telemedia to create usage profiles using pseudonyms. The customer is entitled and has the opportunity to object to this use of their usage data.
14.4 If the Customer requires further information or wishes to retrieve or revoke the expressly granted consent to the use of the Inventory Data or to object to the use of the Usage Data, a STARFACE employee is available to the Customer at the telephone number 0049 721 1510 420 or at the email address firstname.lastname@example.org.
15. General Provisions
15.1 The customer is not entitled to assign their claims from the contract.
15.2 The place of performance and jurisdiction for all disputes arising from or in connection with this contract is Karlsruhe, insofar as the customer is a merchant, a legal entity under public law or a special fund under public law. STARFACE is, however, entitled to sue the customer at any other legal place of jurisdiction.
15.3 The law of the Federal Republic of Germany applies to the exclusion of UN sales law. The Uniform Sales Act (EKG), the Uniform Conclusion of Contracts (EAG) and the Vienna UN Agreement on the International Movement of Goods (UNCITRAL) are excluded.
15.4 Order processing takes place with the help of automatic data processing. The customer hereby gives their express consent to the processing and storage by STARFACE, in the context of contractual relationships, of data that has become known and necessary for order processing.
15.5 Any amendment or addition to the contract must be made in writing in order to be effective. Fax or registered letter is sufficient as a written form under this contract.
15.6 Should individual provisions of these general terms and conditions be or become ineffective, this shall not affect the other provisions. Rather, these will be replaced by a valid provision that comes closest to the ineffective one economically in coordination between STARFACE GmbH and the customer. The above provision applies in the case of loopholes accordingly.