Inxmail GmbH General Terms and Conditions
Valid from October 2007
1. Validity of the Terms of Agreement
Inxmail GmbH, Wentzingerstraße 17, 79106 Freiburg, Germany ("Inxmail"), provides its services based on the following General Terms and Conditions to the exclusion of all others. These General Terms and Conditions apply to all present and future legal transactions between the customer and Inxmail. The Inxmail “Software Licensing Agreement” shall also apply. Customers of Inxmail typically include companies as defined by Article 14 of the German Civil Code and consumers as defined by Article 13 of the German Civil Code.
The customer’s general terms and conditions shall be deemed disapproved. Any deviations to the terms of agreement of Inxmail shall only take effect upon written confirmation by Inxmail.
2. Services of Inxmail
Inxmail markets products and software solutions for e-mail marketing. Its e-mail marketing system is sold as an ASP service and licensed solution. ASP means: Inxmail provides the customer with the technological platform for performing e-mail marketing campaigns. Inxmail shall attempt to deliver all dispatched e-mails. It is however unable to guarantee the successful delivery of e-mails. Inxmail simply conveys the e-mails and does not check the content thereof under legal, factual or other aspects. Inxmail is furthermore not responsible for the content of the e-mails it conveys. Licence means: The buyer acquires the right to install and use Inxmail software in accordance with the licence.
3. Conclusion of Contract
By placing the order, the customer declares his binding intention to purchase the ordered service. Inxmail is entitled to accept the contract as specified in the order within 10 days of receipt by Inxmail.
The contract is concluded upon acceptance of the contract by Inxmail in the form of an order confirmation in writing, by fax or via e-mail, or upon performance of the service by Inxmail. Amendments and supplements to this agreement shall only apply if Inxmail confirms this in writing, by fax or via e-mail.
If a consumer orders a service online, order receipt shall be confirmed immediately. Confirmation of receipt does not constitute conclusion of contract. The confirmation of receipt may be coupled with a declaration of acceptance.
The agreement shall be concluded subject to the proper and timely delivery of the materials by Inxmail’s supplier, insofar as non-delivery is beyond its control. The customer shall be notified without delay if the ordered product is not available and refunded any payment that has been rendered. If the consumer ordered the services online, the text of the Agreement is saved and sent via e-mail at his request together with the applicable General Terms and Conditions.
4. Delivery / Right of use
The provisions of the “Software Licensing Agreement” between the customer and Inxmail shall apply to delivery and the right of use.
5. Prices and Terms of Payment
The prices listed in the most recent price list are binding. Prices do not include the statutory VAT.
Inxmail reserves the right to change the prices for its software and services. Inxmail shall inform the customer of any price increases no later than six (6) weeks before these take effect. If the parties agree on a delivery time of more than four (4) months, the prices of Inxmail valid at the time of delivery or provision of the software or services shall apply.
A separate agreement shall be reached for certain services rendered by Inxmail on behalf of the customer that however are not included in the price list.
Unless agreed otherwise, payments are due immediately upon receipt of invoice. If a customer does not discharge payment within the stipulated time upon receipt of the invoice, he is in default of payment. The statutory interest on arrears shall apply. Inxmail reserves the right to assert claims for higher compensation for delay or default towards an enterprise where required. In the event of delay or default of payment, Inxmail is entitled to refuse performance of all deliveries and services to the customer from this and other agreements.
A right of retention on the part of the customer is excluded except in relation to the same agreement. The customer is only granted a right to set-off in cases where his counterclaims have been determined by a final and non-appealable judgement.
In the case of mail order purchases, the customer is also required to pay a flat rate shipping charge. This includes packaging. The customer is responsible for disposing of the packaging materials.
Delivery dates are only valid upon written agreement. The time of delivery shall be extended in the event of work stoppages (strikes/lockouts), by instruction of the government or legal provisions (import/export restrictions) or due to force majeure. The customer shall have the right to withdraw from the agreement in the event of delay by the seller after a reasonable extension. Other claims for compensation in this regard are excluded, except in the case of intentional or gross negligence on the part of Inxmail.
6. Right of Withdrawal / Return
The consumer is granted the right to return software within a period of two weeks subsequent to receipt and to withdraw from the agreement with indication of reason. The consumer can exercise his right by returning the software and documentation to Inxmail or by declaring and confirming in writing, by fax or via mail that he has deleted the software.
The consumer is not responsible for return postage on orders of over €40,00.
Timely receipt of the notification by Inxmail GmbH shall be deemed as adherence to the deadline.
The consumer shall compensate for any deterioration in value due to the use of the product in accordance with the instructions. The consumer may inspect the goods with due care and caution. The consumer shall compensate for loss in value as a result of other usage with the consequence that this can no longer be sold as "new".
Custom or personalised licences or products are generally not returnable.
7. User's Due Diligence
The customer shall handle the personal username, passwords and customer keys he receives from Inxmail in the strictest confidence. He shall ensure that no unauthorised parties come into the possession of or use this information. The customer shall notify Inxmail in writing, by fax or via e-mail, without delay, of any loss or the possibility that unauthorised parties may have come into possession of the username, passwords and/or customer keys. Inxmail can then block these details.
8. Warranty
Inxmail and the user agree that it is not possible to develop computer programs that are free of error under all conditions of use. Within the scope of the legal regulations, Inxmail shall guarantee that the software complies with the stipulated quality as specified in the product description, user’s manual and any other documentation; and can be deployed correspondingly. Inxmail shall provide no guarantee as to the agreed quality or any other.
In the event of significant deviation, Inxmail shall, by its option, perform improvements or provide a replacement delivery. If the customer is a consumer, he has the option to select whether subsequent performance shall take the form of improvement or replacement. Inxmail is entitled to refuse the selected form of subsequent performance if this is only possible at disproportionate cost and the other form of subsequent performance results in no significant disadvantages for the consumer.
If Inxmail is unable to remedy the significant deviations to the agreed quality by means of improvement within an appropriate period or to enable the use of the software by the user as per agreement, the user can demand a commensurate reduction in payment or withdraw from the agreement.
The user shall draw attention to and describe the observable defects or deficiencies in writing, by fax or via e-mail, within a period of one (1) week upon receiving the delivered software. If this is not done, all warranty claims are excluded. Sending the notification within this time period is sufficient to observe the deadline. The user bears the burden of proof that a claim exists, in particular in regard to the defect itself, the time of determination and the promptness of the complaint. Consumers shall provide notification in writing, by fax or via e-mail, upon determination of any breach of contract with respect to observable defects and deficiencies within a period of two (2) months from the date of determination. Receipt of notification by Inxmail within this time period is sufficient to observe the deadline. If the consumer fails to provide notification hereof, the warranty rights expire two (2) months after the defect or deficiency is determined. This does not apply in the event of fraudulent intent on the part of Inxmail. The consumer bears the burden of proof in regards to the time at which the defect or deficiency is determined.
The user shall provide Inxmail with verifiable documentation on the type and occurrence of deviations to the agreed quality and assist in providing further details on the errors for purposes of limitation.
The warranty does not cover defects or deficiencies resulting from deviations to the intended conditions of use for the software or defects and deficiencies to modified or amended versions of the software and the licensed material. Should the customer elect to withdraw from the agreement after subsequent performance has failed, he is entitled to no claims for compensation due to defect or deficiency.
The warranty period for the supplied software is one (1) year for companies and two (2) years for consumers, starting on the date of delivery. This does not apply if the customer fails to provide notification of the defect or deficiency in due time.
The above-mentioned warranty provisions shall also apply to users of ASP services. If the user observes defects or deficiencies in the software, including the user's manuals and other documentation, or the software is unavailable for full use due to failures or faults, these shall be remedied by Inxmail once the user instructs Inxmail hereof in writing, by fax or via e-mail. The notification shall include a detailed description of the specific defect or fault as required for Inxmail to remedy the defect or fault. The user shall observe any instructions provided by Inxmail. Inxmail shall notify the user in the event that the defect or fault is unable to be remedied in an appropriate period of time.
9. Limitation of Liability
In the event of simple negligent breach of duty on the part of Inxmail, its legal representatives and/or authorised or vicarious agents, Inxmail shall only be liable for foreseeable and direct damages normally associated with this type of agreement. Inxmail shall not be liable to companies in the event of negligent breach of immaterial contractual obligations. These limits to liability do not apply to product liability claims asserted by the customer or other claims involving imputable bodily harm, damage to health or loss of life of the customer. All claims for compensation by the user due to defect or deficiency shall expire one (1) year after delivery unless the ASP services are used. This does not apply in cases where Inxmail may be accused of gross negligence or in cases of imputable bodily harm, damage to health or loss of life of the customer.
Inxmail assumes no warranty if changes or modifications are made to the software. Additional claims on whatever legal grounds are expressly excluded. Inxmail shall not be liable for loss of data, damage to data media or other programs, business interruptions etc.
This limit to liability does not apply in cases where liability is based on intentional or gross negligence.
10. Data Protection
Inxmail shall treat any information it receives with confidentiality and shall only use this data for the purpose of this agreement. Data shall not be transferred to third parties without the consent of the client. Data shall be deleted in their entirety on request, unless this is required for the execution of this agreement.
11. Declaration of Release from Claims
The customer expressly agrees to comply with all legal provisions, in particular those that restrict the dissemination of content and information as well as all provisions under the German Data Protection Act. If any claims are asserted by third parties towards Inxmail due to any wrongdoing on the part of the customer (in particular, but not limited to, the transmission of e-mails or faxes to recipients without the prior consent of said parties), the customer shall release Inxmail from such claims and undertake to assume any resulting costs borne by Inxmail. This includes expenses relating to an appropriate legal defence to contest these claims.
12. Other Provisions
No subsidiary agreements have been concluded. Any amendments and supplements to these General Terms and Conditions must be made in writing. This shall also apply to the agreement to waive the requirement for written form. This agreement is subject to the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction for non-consumers shall be Freiburg (Breisgau), Germany. The invalidity or unenforceability of any provision to these General Terms and Conditions shall not affect the validity or enforceability of the remaining provisions. The provision deemed invalid or unenforceable, in part or in whole, shall be replaced by a valid provision, the effect of which is the closest possible to the intended purpose of the invalid or unenforceable provision.
