General Terms and Conditions
of the F&M Werkzeug- und Maschinenbau GmbH Lengeder Street 21-23, 13407 Berlin
F&M Werkzeug- und Maschinenbau GmbH (hereinafter referred to as F&M) provides the service smartblick consisting of software and hardware components for the determination of operating data of cutting machines on a rental basis. The software components consist of data access and processing services (hereinafter backend) and data presentation layer (hereinafter frontend). The hardware components consist of the physical data acquisition systems (hereinafter referred to as smartbox). The following GTC apply to the use of smartblick:
- smartblick is exclusively provided to entrepreneurs in the sense of § 14 BGB (German Civil Code). These GTC apply to all services offered by F&M to the customer and in particular to the use of smartblick.
- these GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and insofar as F&M has expressly agreed to their validity.
- F&M expressly reserves the right to make changes to these GTC. Changes to these GTC shall become effective if the customer does not object to the changes in text form within one month of receipt of a change notification and F&M has informed the customer of the right to object and the applicable deadline in the change notification. If the customer objects to the change in text form, the previous GTC shall continue to apply.
Establishment of the contractual relationship and test phase To initiate the contractual relationship, the customer must register using the electronic registration form. At any time until the data entered in this form is sent, it can be corrected by overwriting it or the registration process can be cancelled by closing the browser window or tab. Only by clicking on the button Order with obligation to pay does the customer submit a legally binding application to F&M to conclude a contract. This will be confirmed by F&M in a timely manner. This does not constitute a claim for the conclusion of a contract on the part of the customer.
5. The contractual relationship comes into effect with the express order confirmation by e-mail from F&M. Verbal agreements or promises shall only become part of the contract if they have been expressly confirmed by F&M in writing. 6. upon request and after explicit confirmation, F&M grants the customer the possibility to test smartblick on a machine for 30 days without obligation. The above provisions regarding the initiation of the contract shall apply accordingly. The test phase begins 3 working days after the actual shipment of the hardware and ends automatically. If the customer declares within the test phase that he does not wish to use smartblick, the test phase shall end automatically upon receipt of this declaration. Clause 10.3 shall apply accordingly. Otherwise, the test relationship shall be converted into a contractual relationship with the content agreed between the parties. The contract shall then commence on the working day following the end of the test phase.
subject matter of performance and availability 7. main obligation of F&M is the provision of smartblick as well as the maintenance of the condition suitable for the contractually agreed use. F&M provides smartblick as it was available according to the service description valid at the time of the conclusion of the contract as well as the actual functionalities (as is). smartblick is continuously improved by the transmitted customer feedback. However, the customer has no right to a certain design or equipment of smartblick. 8. F&M will process incoming defect reports of the customer according to section 7.4 within a reasonable period of time. F&M is not responsible for delays resulting from gaps and inaccuracies in the description of defects. 9. defects are regularly remedied by subsequent performance, i.e. by providing replacement hardware or software components. In this process, F&M has the choice of attempting to rectify the defect by telephone or by remote maintenance as a first step. If the rectification also fails at the place of installation, for example by replacing individual components of the hardware or software, F&M may take the affected hardware to its own service center for the purpose of rectification. Apart from legal cases, the customer is only permitted to carry out the repair himself/herself with the prior written consent of F&M and only by sufficiently qualified personnel.
Ownership, Rights of Use and Seal 10. smartblick is provided to the customer on a rental basis for the duration of the contract. A transfer of ownership or the granting of unlimited or exclusive rights of use is not owed. The subletting of smartblick or any other transfer to third parties is only permitted with the prior written consent of F&M. 11. F&M shall identify the hardware as the property of F&M by means of reasonable labeling and shall affix a seal. 12. Neither the seal nor this label nor manufacturer's instructions, serial numbers, software license information, etc. may be removed or changed by the customer without prior consent from F&M. The same applies to the SIM card provided, if any, which may not be removed or modified from the associated LTE router. Damage to seals, markings, manufacturer's instructions, serial numbers, software license notices, etc. must be reported immediately by the customer to F&M, regardless of the cause. In the event of a violation of the aforementioned prohibition of removal and alteration or the obligation to notify, the customer must pay a contractual penalty to F&M for each case. This does not apply if the customer is not responsible for the violation. The concrete determination of the amount of the contractual penalty by F&M shall always take into account the special circumstances of the individual case as well as the purpose of the contractual penalty. In particular, the severity, extent and degree of the infringement committed, its risk to F&M and the fault of the customer shall be taken into account. However, the parties agree to a contractual penalty of EUR 20,000 for a first-time violation of the obligations arising from this agreement. Upon request, the customer may have the amount of the stipulated contractual penalty reviewed by the competent court. 13. F&M reserves the right to change, permanently or temporarily discontinue smartblick in whole or in part at its own reasonable discretion (§ 315 BGB), taking into account the interests of the customer, provided that this does not affect essential contractual obligations of F&M and that this is reasonable for the customer.
Provision, Installation and Operation 14. The smartbox shall be handed over to the customer ready for operation, the application software shall be provided by smartblick via frontend. For installation, commissioning as well as operation, the instructions set forth by F&M in the user manual and the quick reference guide as well as other applicable regulations (DIN, ISO, best practices, etc.) shall be continuously observed. 15. The customer is responsible for creating and continuously maintaining the spatial and technical conditions for the proper installation of the smartbox. This applies in particular to the ongoing maintenance of stable Internet connectivity. 16. the smartbox is intended for the purpose of determining operating data of industrial cutting machines. The customer is only entitled to use the smartbox for the aforementioned purpose in its own business operations. 17. instruction and training on the part of F&M can be provided against payment of costs.
rights of use
F&M assures to have sufficient rights of use for smartblick to grant the customer limited rights of use for the duration of the contractual relationship. In all other respects, the licensing conditions of F&M shall apply.
contents and obligations of the customer 18. the customer shall treat smartblick with the care of a prudent businessman, which he is accustomed to apply in his own affairs. He has to protect the smartbox adequately against damage, destruction and theft during the contract period. The customer is responsible for providing sufficient instruction, briefing and training or otherwise ensuring that its own or commissioned fitters, service providers and maintenance personnel are able to use and operate the smartbox in accordance with the operating instructions. 19. After prior consultation, the customer must grant F&M access to the smartbox for the purpose of repair and maintenance work as well as maintenance services, which must be carried out at the place of installation, in accordance with its security and access guidelines. 20. if possible, the customer shall ensure that an appropriate back-up routine is set up and that a data backup is carried out before the start of the maintenance or repair work, which must be announced in good time, also in the form of hardware replacement. In the event of data loss in the course of maintenance or repair work, F&M shall only be liable for the costs incurred by restoring the destroyed data from a data backup and the saved program status by importing an image. 21. Defects as well as damages of smartblick or the service have to be reported to F&M by e-mail to firstname.lastname@example.org by the customer immediately after discovery together with a comprehensible description of the defect.
rent and terms of payment 22. The rent to be paid by the customer is due monthly in advance. The obligation to pay the rent begins with the due date in the month following the provision of smartblick. 23. F&M shall automatically issue monthly rental invoices to the customer in text form. 24. If the customer is in arrears with more than three monthly rent payments, F&M may set a final grace period of two additional weeks under threat of termination without notice and subsequently terminate the contractual relationship without notice in the event of non-payment of the overdue rent. The termination without notice shall take effect 14 days after receipt in order to give the customer the opportunity to avert termination of the contract by paying the rent in arrears. 25. set-off and rights of retention are excluded, unless the underlying counterclaim is recognized or legally established.
Provision of Security 26. F&M is entitled to demand security from the customer prior to providing smartblick for the fulfillment of the customer's obligations arising from the contractual relationship and for the satisfaction of contractual and collateral claims for damages (hereinafter referred to as security deposit). 27. The security deposit shall be made by cash payment or the provision of a bank guarantee at the request of F&M. 10 Term and termination The contractual relationship shall commence upon confirmation in accordance with Section 2.1 and shall have a minimum term of 12 months. Thereafter, the rental relationship shall be extended by 12 months in each case if it has not been terminated in advance in good time. 29. The contractual relationship may be terminated by either party with three months' notice, for the first time at the end of the minimum contract term and subsequently at the end of the respective contract year. The termination options agreed in each case shall apply to the flex rate. The right to extraordinary termination for good cause shall remain unaffected. 30. Cancellations shall be effective in text or written form, whereby the cancellation shall be sent to the e-mail address email@example.com or to the above address. 11 Termination of contract 31. At the end of the contract period, the customer must immediately return the smartbox to F&M, including any manuals and documentation provided, as well as the original packaging and other accessories. 32. the customer must ship the smartbox to F&M's headquarters at his own expense and risk and sufficiently insured.
liability 33. Unless otherwise stipulated in these GTC or the supplementary license terms, F&M shall be liable within the scope of the use of smartblick in accordance with the following provisions. 34. F&M shall be liable without limitation for proven damages caused by smartblick, F&M or by its legal representatives, executives or simple vicarious agents intentionally or through gross negligence. In addition, F&M is liable for the slightly negligent breach of essential obligations, the breach of which endangers the achievement of the purpose of the contract, or for the breach of obligations, the fulfillment of which makes the proper execution of the contract possible in the first place and on the compliance with which the customer may regularly rely. In this case, however, F&M shall only be liable for the proven foreseeable damage typical for the contract. The contracting parties assume at the time of contract conclusion that this contract-typical damage amounts to a maximum of EUR 10,000. F&M is not liable for the slightly negligent breach of obligations other than those specified in the above provisions. 35. F&M's liability for initially existing defects is excluded, unless the defect was known to F&M at the time of provision or was unknown to F&M due to gross negligence. The customer is not entitled to reduce the rental fee. This does not affect the customer's right to reclaim any overpaid amounts from F&M in accordance with the law of enrichment. § 548b BGB is excluded. 36. The above limitations of liability do not apply in the event of injury to life, limb or health, for a defect following the assumption of a guarantee for the condition of the rented property and in the event of fraudulently concealed defects. 37. claims for liability for defects shall become statute-barred after two years. The liability according to the product liability law remains unaffected.
final provisions (39) The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods and the conflict of laws provisions; Article 3 of the Introductory Act to the German Civil Code (EGBGB) shall remain unaffected. If the customer has his habitual residence in another country within the EU/EEA at the time of the establishment of the contractual relationship, the application of mandatory legal provisions of this country shall remain unaffected by the choice of law made in these GTC. 40. 40. Should one of the provisions of these GTC, for whatever reason, be or become invalid, or should the GTC or an agreement made under them contain a loophole requiring regulation, this shall not affect the validity of the remaining provisions. In such a case, F&M and the customer are obligated to replace the invalid or incomplete provision with a provision that comes closest in economic terms to the invalid or incomplete provision. Until such replacement, the statutory provisions shall apply in place of the invalid or missing provision. 41. 41. The place of performance and jurisdiction is Berlin. F&M is entitled to file a claim against the customer at his general place of jurisdiction. 42. Amendments and supplements to these GTC as well as all declarations by the parties relating to membership must be made in text form. This also applies to the cancellation of the formal requirement.