AGB

1.1 These terms and conditions (hereinafter “GTC”) apply to all business transactions between Varyon Deutschland GmbH (hereinafter “Varyon”) and its customers, provided that these are entrepreneurs (§ 14 BGB), a legal entity under public law or a special fund under public law are. They also apply to all future business relationships, even if no express reference is made to them again.

1.2 These General Terms and Conditions apply exclusively. Conflicting, additional or deviating terms and conditions of the customer do not become part of the contract unless Varyon has expressly agreed to their validity in writing. These General Terms and Conditions also apply if Varyon carries out the service without reservation despite being aware of conflicting or different conditions.

1.3 Changes to these General Terms and Conditions will be communicated to the customer at least in text form. Separate reference is made to the right to object and the legal consequences of remaining silent. If the customer does not object to this change within four weeks of receipt of the notification, the changes are deemed to have been accepted by the customer.

1.4 Individual agreements made between authorized representatives of Varyon and the customer in individual cases take precedence over these General Terms and Conditions.

 

2. Subject of the contract, conclusion of the contract, scope of services

2.1 These General Terms and Conditions are based on the sale of goods, including software, and their installation and installation by Varyon to their customers.

2.2 Furthermore, Varyon provides the customer with services relating to the goods sold in accordance with Section 2.1. Varyon's services include, but are not limited to, services such as advice regarding systems, systems and software, support and assistance in the event of malfunctions and/or operating problems with systems and systems, as well as care and maintenance services. Separate regulations in this context can be found in Section 10.

2.3 Offers from Varyon are generally subject to change and non-binding unless they are expressly designated as binding. A contract is therefore concluded with a separate order confirmation from Varyon, delivery of the goods, execution of the service or invoicing. If the customer has objections to the content of the separate order confirmation or the goods sent, he must object to this immediately. Otherwise, the contract is concluded in accordance with the terms and content of the separate order confirmation from Varyon.

2.4 Patterns and samples are non-binding general information and in particular do not represent quality agreements or quality guarantees. All information about Varyon's goods and services in print media, on the Internet and in other advertising media serve to provide the customer with an overview of Varyon's goods and services provide and do not become the subject of the contract.

2.5 If the contract relates to goods that are subject to further technical development, Varyon is entitled to deliver the goods in accordance with the most current manufacturer data sheet, provided that this does not affect their usability for the customer. Likewise, customary quality, quantity or weight deviations and deviations that occur due to legal regulations are permitted as long as they do not impair the usability for the contractually intended purpose. The customer is obliged to inform Varyon if his interest is limited exclusively to the specific type of goods ordered and may not deviate from this under any circumstances.

2.6 Software is provided exclusively in machine-readable form (object code), unless otherwise agreed.

2.7 Varyon may use subcontractors to provide the service if the customer does not expressly object and there is no objective reason against the use of the subcontractor.

 

3. Prices

3.1 Prices are in euros ex works (EXW) Incoterms 2010, do not include freight, customs, packaging and insurance and are based on Varyon's price list valid at the time the contract is concluded. The statutory sales tax is charged additionally and must always be borne by the customer.

3.2 Varyon will adjust the prices to be paid on the basis of the respective contract without calculating any additional profit and at its reasonable discretion to the development of the costs that are decisive for the price calculation. A price increase may be considered if, for example, the costs for the procurement of materials, raw materials or licenses increase or other changes in the framework conditions lead to a changed cost situation. If the increase in the price agreed with the customer is more than 10%, the customer can withdraw from the concluded contract within one week of being notified of this.

3.3 The number of working hours specified by Varyon when concluding the contract regarding the agreed assembly, system installation and maintenance is stated by Varyon in advance based on previous experience as a basis for estimation. Varyon will present the customer with report sheets, by signing which the customer confirms that the hours of work listed therein have actually been worked by Varyon. If circumstances arise that significantly increase the number of working hours determining the price, Varyon will inform the customer of this. In any case, the hours accrued up to this notice must be paid by the customer.

3.4 Varyon is entitled to carry out or provide outstanding deliveries or services only against advance payment or security if the customer is working with Varyon for the first time or Varyon becomes aware of circumstances after conclusion of the contract which are likely to significantly reduce the customer's creditworthiness and through which the Payment of outstanding claims is jeopardized. This applies accordingly if the customer refuses or does not pay Varyon's outstanding claims and there are no undisputed or legally established objections to Varyon's claims.

 

4. Payment

4.1 Unless otherwise agreed in writing, invoices from Varyon are payable gross, including applicable sales tax, without any deductions within seven days, free of postage and charges, on the payment date stated in the invoice. The date of receipt of payment by Varyon is decisive.

4.2 If the customer defaults on payment, Varyon is entitled to withhold further deliveries and services and to charge interest at a rate of 9% points above the applicable base interest rate plus a statutory flat rate of EUR 40.00, reasonable collection costs and legal fees. In addition, Varyon is entitled to make all outstanding invoice amounts due immediately.

4.3 Bills of exchange and checks will only be accepted for collection after a special written agreement and only on account of performance. Discount charges and other bill of exchange and check costs must be borne by the customer. Varyon's property rights in accordance with Section 7 remain valid until all check and bill of exchange claims have been fulfilled in full. Payments are only considered to have been made when Varyon can finally dispose of the invoice amount plus all additional costs after deducting all costs incurred and is released from any liability for bills of exchange. In so-called check exchange transactions, the check payment is not considered the final payment of an invoice, but rather the cashing of the bill of exchange by the drawee.

4.4 Unless otherwise expressly agreed, all payments will be offset against Varyon's oldest claim. If costs and interest have already been incurred, Varyon is entitled to offset the payment first against the costs, then against the interest and finally against the main claim.

4.5 The customer can only offset claims from Varyon if the customer's counterclaim is undisputed or there is a legally binding title. This excludes counterclaims from the customer arising from the same contractual relationship. He can only assert a right of retention if it is based on claims from the same contractual relationship.

4.6 The assignment of any claims by the customer against Varyon arising from or in connection with this contractual relationship requires the written consent of Varyon to be effective. Varyon will only refuse its consent for legitimate interests.

 

5. Delivery and shipping

5.1 Deliveries are made ex works (EXW) Incoterms 2010.

5.2 Delivery periods and dates specified by Varyon are expected, non-binding periods and dates, unless a delivery period or date is expressly agreed in writing as binding.

5.3 Delivery or service deadlines agreed as binding in individual cases are understood to be ex works by Varyon and do not begin before the technical questions still outstanding at the time of conclusion of the contract have been clarified and before the documents, approvals and releases to be obtained by the customer have been provided in full, and in no case before receipt an agreed deposit. Compliance with the delivery period or date agreed as binding requires the timely and proper fulfillment of these and all other obligations of the customer.

5.4 Compliance with bindingly agreed delivery times and dates is also subject to timely and correct delivery by Varyon. This does not apply if Varyon is responsible for the failure to deliver on time or properly. If force majeure events occur, i.e. impediments to performance through no fault of our own and lasting more than four weeks, Varyon will inform the customer in a timely manner. In this case, Varyon is entitled to postpone the delivery or service for the duration of the hindrance. If the impediment to performance lasts longer than two months, Varyon is entitled to withdraw from the contract in whole or in part due to the part that has not yet been fulfilled. Force majeure includes strikes, lockouts, official interventions, energy and raw material shortages, transport bottlenecks through no fault of our own, disruptions to operations through no fault of our own, for example due to fire, water, cyber attacks and damage to systems or machines, and all other hindrances that, when viewed objectively, are not caused by Varyon were caused culpably.

5.5 Delivery or service deadlines agreed as binding in individual cases are also extended appropriately for additional and/or changed deliveries and services requested by the customer after conclusion of the contract.

5.6 Varyon is entitled to make partial deliveries if the partial delivery can be used by the customer within the scope of the contractual intended purpose, the delivery of the remaining ordered goods is ensured and the customer does not incur any significant additional effort or additional costs as a result.

5.7 The costs for shipping and transport insurance are generally borne by the customer, whereby the choice of shipping route and method is at Varyon's sole discretion.

 

6. Retention of title

6.1 The delivered goods remain the property of Varyon until all of Varyon's claims arising from the business relationship with the customer have been paid in full.

6.2 The customer is obliged to treat the items subject to Varyon's retention of title with care and to properly insure them (ie theft, fire, water and low-voltage insurance) and to provide proof of such insurance to Varyon upon request. The customer hereby assigns to Varyon all rights arising from this insurance to Varyon. Varyon hereby accepts the assignment. If an assignment is not permitted, the customer hereby irrevocably instructs his insurer to make any payments only to Varyon. Further claims by Varyon remain unaffected. Upon request, the customer must provide proof to Varyon that the insurance has been taken out.

6.3 The customer is not entitled to pledge the goods subject to retention of title, to assign them as security or to make any other dispositions that endanger Varyon's property. In the event of seizures or other interventions by third parties, the customer must immediately notify Varyon in writing and provide all necessary information, inform the third party about Varyon's property rights and cooperate in Varyon's measures to protect the goods subject to retention of title. The customer bears all costs for which he is responsible that must be incurred to revoke access and to replace the goods if they cannot be collected by the third party.

6.4 The customer is not entitled to resell the goods subject to Varyon's retention of title. In the event that the customer nevertheless sells the goods and Varyon should approve this, the customer hereby assigns the claims from the resale of the goods with all ancillary rights to Varyon, regardless of whether the goods subject to retention of title are without or after Processing is resold. Varyon accepts this assignment now. If an assignment is not permitted, the customer hereby irrevocably instructs the third-party debtor to make any payments only to Varyon. The customer is revocably authorized to collect the claims assigned to Varyon in trust for Varyon. The amounts collected must be paid to Varyon immediately. Varyon may revoke the customer's collection authorization and the customer's authorization to resell if the customer does not properly meet its payment obligations to Varyon, defaults on payments, stops making payments or if insolvency proceedings are filed against the customer's assets. Any resale of the claims requires the prior consent of Varyon. When the assignment is notified to the third-party debtor, the customer's right to collect expires. In the event of revocation of the collection authority, Varyon can demand that the customer disclose the assigned claims and their debtors, provide all information necessary for collection, hand over the associated documents and notify the debtors of the assignment.

6.5 If the customer continues to default on payment after a deadline has been set, Varyon is entitled to withdraw from the contract, without prejudice to its other rights. The customer must immediately grant Varyon or a third party commissioned by Varyon access to the goods subject to retention of title, hand them over and inform them where they are located. After appropriate timely warning, Varyon may otherwise use the goods subject to retention of title to satisfy its due claims against the customer.

6.6 The processing or transformation of the goods subject to retention of title by the customer is always carried out for Varyon. The customer's expectant right to the goods subject to retention of title continues with the processed or converted item. If the goods are processed, combined or mixed with other items that do not belong to Varyon, Varyon acquires co-ownership of the new item in the ratio of the value of the delivered goods to the other processed items at the time of processing. The customer keeps the new items safe for Varyon. The same provisions apply to the item resulting from processing or transformation as to the goods subject to retention of title.

6.7 At the customer's request, Varyon is obliged to release the securities to which it is entitled to the extent that the realizable value of the securities, taking into account customary banking valuation discounts, exceeds Varyon's claims from the business relationship with the customer by more than 20%. The valuation is based on the invoice value of the goods subject to retention of title and the nominal value of claims.

6.8 For deliveries of goods to other legal systems in which the retention of title regulations in accordance with Sections 7.1 to 7.7 inclusive do not have the same security effect as in the Federal Republic of Germany, the customer hereby grants Varyon a corresponding security interest. If further declarations or actions are required for this, the customer will make these declarations and cooperate in all measures that are necessary and conducive to the effectiveness and enforceability of such security interests.

 

7. Warranty for defects

7.1 The customer's warranty rights for defects require that he has fulfilled his obligations to inspect and give notice of defects with regard to the completeness and defect-free condition of the goods, in particular that he has immediately checked the delivered goods with the usual care upon receipt and before any installation in or attachment to another item, this is documented and Varyon is notified in writing of any obvious defects and deficiencies that become apparent during such an inspection immediately upon receipt of the goods, stating the specific complaints and symptoms of defects, the location, number and date of their occurrence as well as the individual goods with production and delivery batches complained about has. The customer must report hidden defects to Varyon in writing with the relevant information immediately after they are discovered. The investigation or report is deemed to be immediate if it is carried out within three working days at the latest; in the latter case, sending the report or complaint is sufficient to meet the deadline. If the customer fails to properly inspect and/or report defects with the relevant information in accordance with this regulation, Varyon's liability for the defect not reported, not properly or not reported in a timely manner is excluded.

7.2 If a complaint is made in a proper, timely and justified manner, Varyon is obliged, at its own discretion, to provide supplementary performance by eliminating the defect or delivering a replacement free of charge. If Varyon is not willing or able to provide supplementary performance after a reasonable period of time, the customer may, at his or her discretion, withdraw from the contract or reduce the purchase price. The same applies if subsequent fulfillment fails or is unreasonable for Varyon. If the defect is insignificant, there is no right of withdrawal. Varyon's right to refuse supplementary performance under the legal requirements remains unaffected.

7.3 The warranty for defects does not apply to damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating materials and chemical, electrochemical, electrical and atmospheric influences.

7.4 The warranty for defects does not apply to defects that are due to the fact that the customer did not have additional equipment installed that was not expressly approved in writing by Varyon or had work carried out by people who were not expressly and written authorized by Varyon or the manufacturer of the goods. or that the goods have been modified or expanded by the customer himself, or that the identity mark affixed to the goods (barcode label or manufacturer's seal) has been violated, unless the customer proves that such changes and expansions are not the cause of the defect.

7.5 Varyon is entitled to first disassemble or remove defective or supposedly defective goods itself and to check whether they are actually defective. If the defect claimed by the customer cannot be identified after inspection, the customer will bear the costs of the replacement and examination. Varyon will bear the customer's expenses necessary for the purpose of inspection and supplementary performance due to defective goods delivered, in particular transport, travel, labor and material costs, if it turns out that there was actually a defect when the risk was transferred.

7.6 If the customer is entitled to reimbursement of expenses as part of subsequent performance, this only applies to necessary and proportionate expenses that a reasonable, economically minded customer would have made, which must be explained and proven by the customer. The hourly rate required for the removal of the defective item and the installation of the repaired or subsequently delivered defect-free item is solely the industry standard hourly wage that would be paid to someone working in a professional position and is therefore the only applicable hourly rate. Consequential damage caused by defects, such as lost profits or operating downtime costs as well as profit shares, sorting costs and other costs of any kind, are not direct, necessary removal and installation costs and cannot be reimbursed as part of subsequent performance. Otherwise, no-fault claims for subsequent performance for reimbursement of removal and installation costs are excluded. The customer is not entitled to request an advance payment for removal and installation costs.

7.7 The customer's rights due to a defect are excluded if he was aware of the defect when the contract was concluded or if it remained unknown to him due to gross negligence. Gross negligence occurs in particular if the customer fails to carry out reasonable examinations of the goods (e.g. functional tests) before or during installation.

7.8 The limitation period for customer claims for defects for newly manufactured goods is one year from the transfer of risk; The warranty is excluded for used goods. Varyon's mandatory liability pursuant to Section 8 remains unaffected.

7.9 A statement by Varyon on a complaint about a defect from the customer is not to be viewed as an acknowledgment of a defect or entry into negotiations regarding a claim or the circumstances giving rise to a claim, unless the customer has expressly asserted a claim in writing or between the parties as evidenced by the customer negotiations should be expressly initiated.

7.10 Varyon does not provide any guarantees regarding quality or durability. If the manufacturer of the goods provides a quality or durability guarantee, this does not constitute any obligation for Varyon.

 

8. Liability

8.1 Varyon has unlimited liability for damages resulting from the violation of a guarantee or from injury to life, body or health. The same applies to intent and gross negligence, to mandatory legal liability for product defects under the Product Liability Act and to liability for fraudulent concealment of defects. Furthermore, Varyon is only liable for simple negligence in the event of a breach of an essential contractual obligation that arises from the nature of the contract, the fulfillment of which enables the proper execution of the contract and on which the customer can regularly rely. In the event of a simple negligent violation of essential contractual obligations, Varyon's liability is limited to the foreseeable, typically occurring damage up to a maximum of EUR 100,000.00 per case of damage. In the event of data loss due to simple negligence on the part of Varyon, Varyon is liable, to the extent that data backup is part of the services to be provided by Varyon, exclusively for the reasonable and necessary costs of reproducing the data from the backup copies to be created by the customer and for restoring the data, which also would have been lost if the data had been properly backed up.

8.2 In the event of data loss due to simple negligence on the part of Varyon, Varyon is solely liable for the necessary and reasonable costs of reproducing the data from the backup copies to be created by the customer and for restoring the data that would have been lost even if the data had been properly backed up. Unless otherwise stipulated above, Varyon's liability, regardless of the legal basis, is excluded.

8.3 The exclusions and limitations of liability stated in Sections 8.1 and 8.2 apply to the same extent to the actions of Varyon's bodies, legal representatives, employees and other vicarious agents.

 

9. Participation

9.1 The customer will grant Varyon's employees access to its premises and the information technology infrastructure available there, if necessary.

9.2 The customer assures that he is in possession of all rights necessary to enable Varyon to access the customer's systems to the extent that this is necessary to provide the services owed. The customer undertakes to provide Varyon with written proof of the relevant authorizations upon request.

9.3 The customer provides Varyon with a technically qualified contact person for the purpose of executing the order.

9.4 The customer will provide Varyon with the necessary information and documents from his sphere in a timely manner. It is the customer's responsibility to provide a suitable system environment as well as any system components, power cables or similar necessary for Varyon to fulfill the contract. The same applies to the procurement of test data.

9.5 The customer is responsible for transferring old data and other data migration services.

9.6 If the customer does not fulfill the cooperation services assigned to him or does not fulfill them properly, Varyon is not responsible for any resulting expenses, damages or other impairments, in particular for any delays, if there are no significant circumstances for which Varyon is responsible.

9.7 The customer must report any disruptions immediately after they become known, stating the information known to them and relevant to detecting them, and take or enable reasonable measures to determine and analyze the disruption or any defect. Unless another form of fault reporting has been agreed, he will generally report this using a fault reporting form provided by Varyon.

9.8 The customer is responsible for immediately informing Varyon of any changes to the system environment, supplies or changes to system components such as hardware or software that he has initiated, provided that these affect Varyon's contractual services.

 

10. Special conditions for services

10.1 Unless otherwise agreed, services are carried out by Varyon by telephone, email and/or remote maintenance. On-site service can also be provided upon special request from the customer.

10.2 Unless otherwise agreed, Varyon services are remunerated based on time spent. Travel times, travel costs, material costs and/or additional costs will be reimbursed in accordance with Varyon's current price list. Waiting times of Varyon employees for which the customer is responsible are paid as working hours. The on-site service will be invoiced to the customer separately. Section 615 sentence 2 BGB applies accordingly. The remuneration for services is due monthly in arrears unless otherwise agreed.

10.3 If no different service times have been agreed, the periods from Monday to Friday from 8:00 a.m. to 5:00 p.m. (with the exception of public holidays at Varyon's headquarters) are considered service times. Service times are the times within which the customer is entitled to agreed services from Varyon.

10.4 The response time period begins with the receipt of the corresponding report or occurrence of the agreed event during the agreed service times and runs exclusively during the agreed service times. If a message is received outside the agreed service times or the agreed event occurs outside of the service times, the response time begins at the beginning of the next service time. Response times are the period within which Varyon must begin providing services such as support and/or maintenance.

10.5 The expenses for the initial introduction to the systems and systems supplied by Varyon are included in the purchase price. The customer must appoint a qualified employee to Varyon for this purpose. Training for the systems and systems supplied by Varyon only takes place on the basis of a separate order from the customer. Remuneration for training measures and documents is based on the expenditure and at the applicable remuneration rates.

10.6 Proper data backup is the responsibility of the customer unless data backup is part of the services to be provided by Varyon.

10.7 Termination of services is possible for both parties without giving reasons, subject to a notice period of three months to the end of the calendar month, unless other agreements have been made, in particular regarding fixed terms. The termination must be made in writing. The right to extraordinary termination exists regardless of whether one of the contracting parties does not fulfill the contractual obligations, the customer is more than one month late with the remuneration payments or has stopped making them completely. The customer's liabilities towards Varyon remain unaffected.

 

11. Property rights

11.1 The products delivered by Varyon (software, documents such as manuals, brochures, etc.) may be subject to intellectual property rights of Varyon and/or third parties, in particular copyrights, which the customer must observe when using the contractual goods. Unless otherwise agreed, Varyon supplies the customer with standard software, which enables the customer to use it easily (not exclusively) and permanently on the number of workstations specified in the program certificate. For further use of the programs, in particular use with a higher number of workstations than the number stated in the program certificate, the customer requires further granting of rights by Varyon. Any use beyond the contractually agreed extent, in particular simultaneous use of software on more than the number of workstations specified in the program certificate, is an unlawful act.

11.2 Copyright and other proprietary rights notices may neither be removed nor changed. They must be included on every copy.

11.3 For customer-owned software and for software to which the customer has the right to have it edited or changed and to use the edited or changed software, the customer grants Varyon the right to carry out such editing or changes for the customer within the scope of the to carry out contract execution.

11.4 The customer releases Varyon from all claims, in particular claims for damages, fees and costs, including all legal fees, which are based on legal or out-of-court disputes due to actual or alleged infringements of third-party rights, provided that the infringement is based on information, instructions, data or materials of the Customer based. Varyon has the right to participate in the defense of any third-party claims, both in and out of court.

 

12. Data Protection, Confidentiality

12.1 The contracting parties are obliged to comply with the legal provisions on data protection.

12.2 Varyon processes the customer's personal data if, to the extent and for as long as this is necessary to establish, carry out or terminate orders. The legal basis in this context is Article 6 Paragraph 1 Sentence 1 Letter b) GDPR. Further processing only takes place if a legal regulation requires or permits this or if the customer has consented. Sentence 1 to 3 applies accordingly to the transfer of the customer's personal data to third parties.

12.3 If personal data is processed on behalf of Varyon (order processing within the meaning of the GDPR), it is the customer's responsibility to conclude an agreement for order processing that satisfies the legal regulations in accordance with Art. 28 Para. 3 GDPR.

12.4 The contracting parties are obliged to keep all confidential information obtained as part of the contractual relationship secret, in particular not to pass it on to third parties or to use it other than for contractual purposes. Confidential information in the above sense is information that a reasonable third party would consider worthy of protection, for example all business and trade secrets, samples, drawings, computer documents, sketches, technical documentation, explanatory images or information that is marked as confidential. The obligation of confidentiality does not apply to information that is already lawfully known to the parties or that becomes known outside the contract without breach of a confidentiality obligation.

 

13. Final provisions

13.1 The place of performance for all deliveries and services as well as subsequent fulfillment is Varyon's registered office.

13.2 The place of jurisdiction for all disputes arising from or in connection with the contractual relationship is determined by Varyon's registered office. However, Varyon is entitled to sue the customer at any other permissible place of jurisdiction.

13.3 German law applies exclusively to the contractual relationship, including its interpretation and implementation, excluding the provisions of international private law and the UN Convention on Contracts for the International Sale of Goods (CISG).

13.4 Should individual provisions of these General Terms and Conditions be or become ineffective in whole or in part, this will not affect the validity of the remaining provisions. The parties undertake to replace the invalid provisions with replacement provisions that come as close as possible to the purpose intended by the invalid provision, taking into account the interests of both parties.

13.5 No additional agreements have been made. Contractual notices and declarations must at least be in text form. Changes and additions to contractual conditions require at least authorization with an electronic signature or a handwritten signature. This also applies to the waiver of this formal requirement.