General Terms and Conditions
Section 1: Scope, Authority to Make Alterations
- Ocster GmbH & Co. KG, Oldenburg, Germany (“Ocster”) shall provide all deliveries and operations for Ocster software offered in return for payment as well as for other services (“Ocster Services”) solely on the basis of these terms and conditions of business and supplementary specific terms and conditions of business and terms and conditions of use.
- Ocster shall be entitled to alter the contents of its general and specific terms and conditions of business and terms and conditions of use with the customer’s permission, provided that the alteration taking Ocster’s interests into account is also reasonable for the customer. The alteration shall be deemed to have been approved if the customer does not object to the alteration within four weeks of receiving the notification of change and Ocster has advised the customer of the consequences of his failure to object in the notification of change. If the customer objects to the alteration, both parties shall be entitled to terminate the Agreement at the earliest opportunity.
- Ocster does not recognize the customer’s terms and conditions of business unless it has expressly approved these in writing. This shall apply even if Ocster provides services without reservation and in full knowledge of the customer’s conflicting terms and conditions of business.
Section 2: Conclusion of Agreement
- Ocster shall be entitled, but not obliged, to accept the customer’s request to conclude the Agreement.
- The Agreement shall only be concluded upon Ocster’s express acceptance of the order or upon the first action taken by Ocster towards fulfillment of the Agreement.
- If advance payment has been agreed to, Ocster’s obligation to perform shall only arise upon receipt of the customer’s payment.
Section 3: Cancellation Policy
Right of withdrawal
You may withdraw your contractual statement within two weeks in writing (e.g., by letter, fax or e-mail) without stating reasons or, if the items are provided to you before the period expires, by returning the items. The period begins once you have been informed of your right to withdraw in writing, however not before conclusion of the agreement, not before receipt of the items (not before receipt of the first partial delivery in the case of recurring delivery of similar items) and also not before fulfillment of our duties to inform the customer in accordance with Art. 312c, Para. 2 BGB [German Civil Code] in connection with Art. 1, Para. 1, 2 and 4 of BGB-InfoV [Regulation about the obligations to inform and provide evidence under civil law] as well as our duties in accordance with Art. 312e, Para. 1, sent. 1 BGB in connection with Art. 3 of BGB-InfoV. The items must be returned or the notice of cancellation must be sent on or before the appropriate date in order to observe the cancellation deadline. The notice of cancellation must be sent to Ocster GmbH & Co. KG, Kleiberstr. 16, D-26131 Oldenburg, Germany.
Please bear in mind the consequences of withdrawal
If you have exercised your right to withdraw, any benefits received shall also be restituted and, if necessary, derived advantages (for example, interest) shall be refunded. You may be required to compensate us if you are unable to restitute all or part of the benefit received, or if its value has deteriorated. Where items have been supplied, this shall not apply if the deterioration of the item was solely due to its being tested—such as would have been done in a retail store. Furthermore you can avoid the obligation for value replacement for any deterioration in value due to the use of the item in accordance with the instructions if you do not use the item as if you already owned it and refrain from acts that would affect its value.
Items that are fit to be sent by parcel post shall be returned to us, at our risk, if so requested. You shall be responsible for return postage if the delivered goods correspond to the order and if the price of the items to be returned is less than €40.00, or if you have not provided the consideration or a contractually agreed partial payment at the point of cancellation where the price of the items exceeds €40.00. Otherwise, return postage shall be free of charge for you. If the items cannot be sent by parcel post, they will be picked up at your premises. Obligations to refund payments must be fulfilled within 30 (thirty) days. The period for you begins on the date that the item or declaration of revocation is sent; for us it begins upon receipt thereof.
Please also note:
In the case of services, your right of withdrawal shall lapse prematurely if your contractual partner has commenced performance of the service with your express consent before the cancellation deadline, or if you have prompted this yourself. Neither shall you be entitled to withdraw if we supply software to you on a data carrier and you have broken the seal on the data carrier.
End of cancellation policy
Section 4: Prices and Payment
- The prices are to be understood as fixed prices. The Ocster list price valid at the time that the customer’s order was placed shall be authoritative, unless agreed otherwise. Cash discounts and other deductions will not be granted unless they have been expressly agreed to. The applicable VAT will be shown separately. The consideration is to be paid within two weeks, once Ocster has made the invoice accessible to the customer. Objections to an invoice are only permissible within six weeks of receipt by the customer, provided that Ocster points out the consequences of this exclusion on the invoice.
- In case of default, Ocster will charge interest at the rate of 10% p.a., but not below the statutory default interest rate. If the customer defaults on its payment obligations, Ocster will charge an arrears fee for each reminder for payment in accordance with the respective current price list, unless the customer proves that no damage whatsoever or significantly less damage has been caused. Ocster reserves the right to assert further claims on grounds of default in payment.
- In the event of reversal of the customer’s payments for which the customer is responsible, Ocster will charge a lump-sum fee for each reversal in accordance with the respective current price list, unless the customer proves that no damage whatsoever or significantly less damage has been caused. Any exchange rate risk and the costs of monetary transactions, as well as all taxes and customs duties payable on the delivery or service, shall be borne solely by the customer. The exchange rate at the time at which the consideration is credited to Ocster or to the debt collection agency appointed by Ocster shall be authoritative.
- The customer may only offset claims by Ocster with uncontested claims or claims confirmed by a declaratory judgment.
Section 5: Liability for Defects
- It is not possible given the current state of technology to develop software or offer Internet-supported services that function without error and are available at all times and in all use cases. The Ocster software or services shall therefore only be deemed to be defective if the characteristics and features specified by Ocster on its websites upon conclusion of the Agreement are not adhered to.
- If claims are brought against Ocster on grounds of liability for defects, the customer must draw Ocster’s attention to the defects in writing within one week of noticing the defects, wherever possible. The defects must be described in detail. Ocster shall initially be entitled to eliminate the defects by delivering a replacement item or by rectifying the respective defect. Liability for defects shall be excluded if the defect has arisen as a result of interference by the customer or a third party. Ocster shall not be held liable for damage caused by the incorrect use or modification of its services by the customer or third parties. For consumers, the term of liability for defects shall be two years from the transfer of risk. For companies, a reduced term of one year shall apply, provided that Ocster’s liability for defects is not unlimited pursuant to Section 6.
- Ocster shall be entitled to provide the customer with a legally acceptable possibility of using the agreed object of the delivery or service or an object of equal value to eliminate defects of title. The customer will inform Ocster without delay in the event that third parties assert conflicting rights against him. Only Ocster shall be entitled to defend such claims at its own expense, provided that they are not based on behavior by the customer that is contrary to the latter’s duties and obligations. Legal transactions entered into by the customer with third parties shall not be binding for Ocster.
Section 6: Liability
- Ocster shall only be liable for damage if the damage is due to willful or gross negligence on the part of Ocster or if Ocster has breached a duty, the fulfillment of which is essential for the proper execution of the Agreement and on which the customer may normally be entitled to rely. In the event that the culpable breach of a fundamental contractual obligation of this kind is not due to willful or gross negligence, Ocster’s liability shall be limited to the damage that Ocster could reasonably have foreseen upon conclusion of the Agreement.
- Ocster’s unlimited liability on account of warranty, in the event of personal injury and in accordance with the Product Liability Act shall not be affected.
- The customer shall be liable for all consequences and disadvantages that arise for Ocster or for third parties employed by Ocster in fulfillment of its obligations through the improper or illegal use of the Ocster Services by the customer, or as a result of the customer indirectly or directly failing to fulfill his other obligations.
Section 7: Obligations of the Customer
- The customer shall be obliged to use the Ocster software and services properly.
- The customer assures that the data he has provided to Ocster is correct and complete. He undertakes to inform Ocster of changes to the data provided without delay and to confirm that the data is current and correct within 15 days of being requested to do so by Ocster. This applies in particular to the customer’s name, postal address, e-mail address, telephone and fax numbers and bank details.
Section 8: Data Protection
Ocster shall only collect, process and use the customer’s personal data without obtaining further permission to the extent that this is required to establish and execute the Agreement, as well as for billing and other business purposes. Further information is available online at http://www.ocster.com/privacy-policy/en.
Section 9: Place of Jurisdiction, Applicable Law
If the customer is a business, legal entity under public law or a special fund of assets under public law, or has no domestic place of jurisdiction, the exclusive place of jurisdiction for all disputes arising from this Agreement shall be Oldenburg (Oldb), Germany. Ocster shall also be entitled to institute proceedings against the customer in his general place of jurisdiction. The agreements concluded by Ocster on the basis of these general terms and conditions of business and claims resulting from these, whatever their nature, shall be governed exclusively by the law of the Federal Republic of Germany to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Section 10: Severability Clause
If one of the provisions of this Agreement is wholly or partially invalid, the effectiveness of the remaining provisions or parts thereof shall not be affected by this. In addition, jus dispositivum shall apply.