Terms and Conditions
Terms and Conditions of Business
Scope of Application
- Any and all deliverables, performances and offers of Hiprocall GmbH (hereinafter “Hiprocall GmbH”) shall exclusively be subject to these Terms and Conditions of Business (hereinafter “Conditions”).
- Any deviating terms and conditions of the Customer shall not apply. This shall also apply if Hiprocall GmbH does not explicitly object to such conditions. Hiprocall GmbH shall not be bound by any terms and conditions of the Customer unless expressly agreed in writing.
§ 1 Quotation and Conclusion of Contract; Offer Documents
- The display of deliverables and performances in the online shop does not represent a binding offer of Hiprocall GmbH. It is an invitation of the Customer to make a binding offer to Hiprocall GmbH
- Each order of the Customer constitutes a binding offer to conclude a contract relative to the deliverables and performances. By sending off the order in the online shop, the Customer places such an offer for purchase of the deliverables and performances contained in the shopping basket. Thereby, the Customer also accepts these Conditions as the solely terms and conditions governing the legal relationship with Hiprocall GmbH.
- A contract shall only be concluded if Hiprocall GmbH accepts the offer by forwarding to the Customer an explicit acceptance note, or by rendering the deliverables and performances ordered.
- In so far as Hiprocall GmbH makes an offer to Customers who are entrepreneurs, such an offer shall be without obligation.
- Hiprocall GmbH reserve the ownership, copyrights and intellectual property rights to all documents and other supplements to the offer that have been forwarded to the Customer in connection with the offer, in particular the right to file applications for the possible registration of rights. All suggestions, concepts, documents, specifications, price lists etc. that were provided to the Customer at the state of offer are strictly confidential, and may neither be used by the Customer nor made available to third parties. This also applies in cases where the offer documents are not subject to any copyright or other protection.
§ 2 Service Specification
- Hiprocall GmbH renders services in the field of planning and creation of sound productions, in particular creation and installation of individual answering machine announcements and waiting loops in the field of communications technology, in particular in mobile and landline telephone systems. “Sound production” within the meaning of these Conditions also includes broadcasts and programmes for broadcast stations, telecommunications service providers and other third parties.
- The services of Hiprocall GmbH include in particular consulting, training and concept creation in the field of communications technology and telecommunications.
§ 3 Cooperation Obligations of the Customer
- The Customer undertakes to deliver to Hiprocall GmbH at his own expense all documents, material, data and information required for the proper performance of the order. In particular, the Customer undertakes to completely fill in and make available to Hiprocall GmbH all questionnaires provided to him relative to the performance of installation, production, conception or consulting services.
- In case the Customer contributes text and music productions (“External Production”) the Customer is liable for the clearance of the rights to such External Production. In particular in the case of text and musing productions subject to the realisation of the GEMA (German Society for musical performing and mechanical reproduction rights) or any other collecting society, the Customer shall be liable for the registration and licensing including any costs involved.
- The Customer assures that he holds the necessary rights to the elements and materials delivered by him and used by Hiprocall GmbH or its subcontractors. This includes in particular the right to grant the necessary licensed rights to Hiprocall GmbH, in particular the right of copying, editing and synchronisation in addition to publishing, distributing and making publicly available the edited version, rendering and broadcast, in particular in edited form as well as name rights for the purpose of use within the scope of this contract.
- In so far as prior to the recording of sound productions (spots, corporate audio logos, jingles etc.) texts, music pieces of music, sound phrases or similar elements of sound production provided, he shall, pursuant to Section 642 BGB (German Civil Code) relative to the cooperations in sound productions, inform Hiprocall GmbH within a term of 14 days upon receipt of the suggestions, or concepts, which of the versions shall be realised in the sound productions by Hiprocall GmbH. In case the Customer is an entrepreneur and does not fulfil this obligation within the term, the Customer’s silence shall be deemed an invitation to Hiprocall GmbH to exercise the choice on behalf of the Customer. In such a case, Hiprocall GmbH shall be authorized by the Customer to choose the artistic design of the sound production, including the choice of texts, music and sound phrases, freely and unrestrictedly. Hiprocall GmbH shall again point out to the Customer the consequences of Customer’s failure to exercise his right of choice within the term at delivery of the suggestions or concepts to the Customer.
- If at least one consulting or training service is subject matter of the contract, the Customer at request of Hiprocall GmbH shall in due time make a suggestion for the date of performance of the service. If such suggestion is not made within the prescribed time period, the Customer is at default of acceptance. If the Customer upon another request of Hiprocall GmbH, again fails to make a suggestion for the performance date within the prescribed time period Hiprocall GmbH shall be entitled to claim full remuneration without subsequent performance. Section 615, Sentence 2 BGB is explicitly excluded. This applies to any default of appearance at any agreed date accordingly.
§ 4 Delivery and Supply
- Delivery and completion times are non-binding unless expressly agreed otherwise. Any binding delivery and completion times shall be prolonged accordingly, if the Customer does not fulfil his duty of cooperation in due time pursuant to Section 3 of these Conditions.
- Hiprocall GmbH shall directly import the sound productions into the voicemail system of the telecommunication provider for the Customer’s phone number, unless explicitly stipulated otherwise.
- In case that delivery and performance should no longer be available although Hiprocall GmbH previously entered into a respective contract, Hiprocall GmbH shall immediately inform the Customer of unavailability. In case that delivery and performance are not available, both parties shall be entitled to withdraw from the contract. In case Hiprocall GmbH withdraws from the contract, the Customer shall immediately be reimbursed for any consideration already provided on his part.
- If the Customer is an entrepreneur, and is at default of acceptance or does not fulfil his duty of cooperation pursuant to Section 3 of these Conditions, Hiprocall GmbH shall be entitled to claim additional expenses from the Customer in the amount of 0.5% of the agreed net price per calendar day of default, however, with regard to the duty of cooperation only if an exact date was agreed for the respective cooperative action. The Customer shall reserve the right to prove that additional expenses did not incur, or only to a substantially lower extent than the lump sum. Hiprocall GmbH reserves the right to provide evidence of higher additional expenses.
- If the Customer is an entrepreneur, and an order is not performed for reasons for which Hiprocall GmbH cannot be held responsible, Hiprocall GmbH, instead of the lump sum for additional expenses pursuant to paragraph 4, shall be entitled to claim a lump sum for the loss in the amount of 50% of the agreed remuneration. If the Customer is an entrepreneur, and an order that has already been processed is not finished for reasons for which Hiprocall GmbH cannot be held responsible, Hiprocall GmbH shall be entitled to payment of the complete remuneration. An order shall be deemed to have been processed if Hiprocall GmbH has started to render the performance as agreed in the contract. Again, the Customer shall be entitled to prove that damage did not incur, or only to a substantially lower extent than the lump sum.
- If the Customer is an entrepreneur, Hiprocall GmbH reserves the correct and timely supply to its own.
- At all time, Hiprocall GmbH shall be entitled to appoint affiliated companies or subcontractors to perform the orders and render the services.
§ 5 The Passing of Risk
If the Customer is an entrepreneur, shipment of the deliverables and services shall be made at the expense and risk of the Customer. The risk shall pass onto the Customer, who is an entrepreneur, as soon as the shipment is consigned to the carrier, or as soon as it has left the warehouse for shipment.
§ 6 Acceptance of Works
The Customer is obliged to accept any work produced in accordance with the contract and which is acceptable within 10 calendar days after being provided. If it is not accepted or objected within this time period, the work is deemed accepted. Hiprocall GmbH shall again point out the Customer the consequences of Customer’s failure to declare acceptance within this time period at provision of the deliverables and services.
§ 7 Liability for Defects under Contracts of Sale and Contracts for Work and Materials
The following provisions shall only apply to Customers who are entrepreneurs.
- If the performance under the contract of sale and the contract for work and material does not have the condition agreed in the contract, this is deemed to constitute a material defect. The condition agreed in the contract is finally set forth in the performance specification of the respective contract.If the Customer was not effectively granted the rights required for use in accordance with the contract, this is deemed to constitute a defect in title.
- If the Customer is a merchant, he will promptly investigate the deliverables and services for probable defects, and notify Hiprocall GmbH thereof without further delay (§ 377 HGB, the German Commercial Code). If the Customer infringes this duty, any rights ensuing from such material defects that he might have detected and complained, if he had duly fulfilled his duty of inspection and complaint, are excluded.
- The Customer must notify Hiprocall GmbH within 10 days upon delivery of any apparent defects in writing.
- In so far as the deliverables and services of Hiprocall GmbH are defective, Hiprocall GmbH shall, by way of subsequent performance, at its own discretion either remedy the defect or deliver a product free from defects. In case of unsuccessful subsequent performance the Customer shall be entitled to either a reduction of the remuneration or withdrawal from the contract.
- In so far as the defect constitutes a breach of duty for which Hiprocall GmbH can be held responsible, the Customer, instead of or in addition to his right of reducing the remuneration or withdrawing from the contract, shall also be entitled to claim damages instead of performance, subject to the provisions of §11 below. In lieu of damages instead of performance the Customer may also claim reimbursement for such useless expenses he incurred, and could duly be expected to incur in reliance on the delivery of the service, unless its purpose would not have been achieved even without the breach of duty on the part of Hiprocall GmbH.
- The Customer’s right to claim damages for breach of contract under Section 280 BGB shall remain unaffected subject to the provisions of §11 below.
- Any provision of these Conditions which excluder restrict the rights in case of a defect shall be void in case Hiprocall GmbH has fraudulently concealed the defect, or given a guarantee of condition of the deliverables and services under the contract.
- Liability for defects does not include to such defects that were caused by use conditions other than intended or specified in the performance description for the deliverables and services, or caused by use of hardware or operation of conditions other than specified. Any and all liability for defects shall be excluded if the Customer or any third person made modifications to the deliverables and services or parts thereof without consent of Hiprocall GmbH, unless the Customer can prove that any such defect has a different cause.
- Without explicit additional written confirmation from Hiprocall GmbH, technical data, product information and descriptions shall, not constitute a warranty or guarantee of condition confirmation of characteristics.
- Any claims of the Customer raised on the grounds of a defect of deliverables or a defect in title shall become statute-barred after one (1) year – except in case of claims for damages.
- Any mandatory statutory right of recourse of the Customer against Hiprocall GmbH shall remain unaffected.
§ 8 Reimbursement and Payment Conditions
- In case no definite price was agreed for a service, the general list prices according to the currently valid pricelist of Hiprocall GmbH shall apply. All prices are indicated as gross prices inclusive of value added tax.
- If the Customer is an entrepreneur, the following payment conditions shall apply for orders with a total net order value of above Euro 3,000.-, unless expressly agreed otherwise in writing: 30% of the total gross order price become payable at order placement, 30% shall become payable when Hiprocall GmbH is ready to deliver, and 40% become payable upon acceptance of the performance by the Customer. At each due date the Customer shall be requested for payment by an invoice. Besides, invoices will be issued at delivery, unless expressly agreed otherwise.
- Payment of the remuneration shall become due at receipt of the invoice. In the absence of payment the Customer shall be in delay after 30 days from the due date and receipt of the invoice or an equivalent statement of account, at the latest.
- Setting off against claims of Hiprocall GmbH shall only be allowed in so far as the respective counter-claim is recognized by declaratory judgement or acknowledged from Hiprocall GmbH. The Customer may only assert a right of retention in case of counter-claims arising under the same contractual relationship.
§ 9 Reservation of Title
- Hiprocall GmbH reserves the title to the contractual objects (reserved goods) until complete payment of the remuneration. In case of withdrawal, Hiprocall GmbH shall be entitled to demand return of the contractual object, sell or otherwise dispose of it. The Customer is not entitled to dispose of the reserved goods.
- In the event of seizures of third parties against the reserved goods, the Customer is obliged to inform third parties of the reservation of title on the part of Hiprocall GmbH. The Customer shall immediately notify Hiprocall GmbH to enable Hiprocall GmbH to assert its rights of ownership. In case Hiprocall GmbH thereby incurs any judicial or extra-judicial costs, and in case the third party is not in a position to reimburse Hiprocall GmbH for these costs the Customer shall be liable therefore.
§ 10 Copyrights and Rights of Utilisation
- Hiprocall GmbH is the owner or licensee of the rights of use to text and music productions, and thus also of the entire sound production, in so far as these are text and music productions of Hiprocall GmbH or any works created according to its instruction (“Own Production”).
- For Own Productions, Hiprocall GmbH grants the Customer subject to full payment a simple, permanent and transferable right of use to the sound production.
- HiPrCall GmbH shall be entitled to sign all sound and other data carriers produced. Furthermore, Hiprocall GmbH shall be entitled to make reference to the Customer for its own advertising purposes, to use any corporate logo and nameplate (reference listing) and to publish the work it delivered or otherwise make it available to any third party for its own advertising purposes.
§ 11 Liability
- In case of intent or gross negligence, the liability of Hiprocall GmbH shall be unlimited in accordance with statutory provisions.
- Hiprocall GmbH shall furthermore be liable for any slight negligently violation of an essential contractual obligation by Hiprocall GmbH, its representatives, employees or vicarious agents. Essential contractual obligations are such obligations that first enable the proper execution of the contract, whose violation endangers the objective of the contract, and in whose compliance the Customer regularly confides in. In this case, the liability is limited relative to the amount to the typical and foreseeable damage. Hiprocall GmbH shall not be liable for slight negligently violation of other obligations.
- The foregoing exemptions from liability shall not apply to injuries to life, body and health. Liability under the provisions of the Product Liability Act shall remain unaffected.
- Besides, liability for the recovery of Customer’s data is limited to the costs incurred in recovering the data when stored regularly and appropriately to the risk level, or when otherwise restorable from machine-readable data material with reasonable effort.
- The foregoing provisions apply accordingly to the liability of Hiprocall GmbH for reimbursement of futile expenses to no avail.
§ 12 Proof of Solvency
In the occurrence of circumstances which give rise to doubt regarding the Customer’s capacity or willingness to meet his financial commitments, and also in case the Customer is in delay with his payments owed to Hiprocall GmbH, Hiprocall GmbH shall be entitled to suspend any performance until complete payment is effected in advance or adequate securities are furnished. If the Customer fails to attend to such a request within a reasonable time period, Hiprocall GmbH shall be entitled to withdraw from the contract completely or partly; any further claims to which Hiprocall GmbH is entitled shall remain unaffected.
§ 13 Confidentiality and Data Protection
- Hiprocall GmbH undertakes to keep any business secrets of which it acquires knowledge in the context of the cooperation with the Customer with due care and diligence of a prudent businessman. Hiprocall GmbH shall treat any information, data and documentation thus gained as confidential. This undertaking of diligence and confidentiality shall also apply if contract is not concluded. This provision shall also apply beyond termination of the Contract.
- The Customer undertakes to clearly mark as such all working material provided or made available to Hiprocall GmbH that is not authorised to be published and shall be treated as confidential. Hiprocall GmbH shall be entitled to publish all working material that is not marked accordingly, or make it otherwise available to third parties.
- All personal data communicated voluntarily by the Customer in the context of his order shall be used exclusively in accordance with the Bundesdatenschutzgesetz BDSG (German Federal Data Protection Act) and the Telemediengesetz TMG (German Tele-Media Act)
- Personal data of the Customer shall only be collected in so far and if the Customer communicates them voluntarily when using the (online) offer of Hiprocall GmbH. Such data shall only be processed and transfer to third parties in so far as it is necessary for the performance of the contractual relationship between Hiprocall GmbH and the Customer.
- At any time the Customer shall be entitled to request information free of charge about his personal data stored, and optionally, correction, disabling and deletion of said data.
- Hiprocall GmbH reserves the right to create user profiles under a pseudonym from the data collected from the Customer for purposes of advertising, market research or tailoring the offers to specific needs. The Customer shall be entitled to object to such use of his user data at any time.
- Any inquires regarding the collection, processing or use of the Customer’s personal data, regarding insight, correction, disabling or deletion of data, as well as the revocation of consent may be directed to Hiprocall GmbH under the address quoted in Section 14, item 1 of these Conditions.
§ 14 Right to Rescission and Instructions on Rescission
- You may rescind your contractual agreement without giving any reasons within two weeks in writing (e.g., letter, fax, e-mail) or by returning the goods. The time period for rescission shall commence no sooner than upon receipt of these instructions on the right to rescission in text form, upon delivery of the goods, however not until the goods are received by the Customer, or, in the case of services, not prior to the conclusion of a contract, respectively, and also not until we have complied with our duty to provide information in accordance with § 312c Para. 2 BGB (German Civil Code) in conjunction with § 1 Para. 1, 2 and 4 BGB-InfoV (German Regulation on the Information and Advisory Obligations under Civil Law) and further our duties in accordance with § 312e Para. 1 Sentence 1 BGB in conjunction with § 3 BGB-InfoV. Sending off the declaration of rescission or the goods in time is sufficient in order to comply with the period for rescission. The declaration of rescission is to be directed to: Hiprocall GmbH, Feringastr. 9, 85774 Unterföhring.
- In the event of a valid rescission, any performance already received by either party must be returned and any benefits that may have been obtained (e.g. interest) are to be handed over. If you are not able to return to us the deliverables received, or are only able to do so in part or in a deteriorated state, you will be required to compensate us accordingly. In case objects are delivered, this shall not apply if the impairment of the item can be attributed exclusively to the examination of the object – such as may occur in a retail store. Furthermore, you can avoid the obligation to pay compensation for the intended use of the object, if you do not use the object as your own property and if you refrain from any activity that impairs the objects value. If the objects can be dispatched as parcels, they shall be returned at our cost and risk. Any objects that cannot be dispatched as parcels will be collected at your premises. Duties to reimburse payment have to be fulfilled within 30 days. The period commences for you when you send off your declaration of rescission or the object, and for us when we receive same.
- Your right to rescission does not exist in the case of contracts for the delivery of goods that are produced in accordance with your specifications or are clearly designed to meet your personal needs or are not suitable for being returned owing to their quality. If services were performed, your right to rescission shall lapse prematurely if your contractual partner has commenced rendering the service with your explicit consent prior to the expiry of the time period for rescission, or if you have caused such rendering yourself.
§ 15 Final Provisions
- If the Customer is an entrepreneur or has no general place of jurisdiction in country the place of jurisdiction shall be Munich. The place of performance or all deliverables and services rendered by Hiprocall GmbH is Unterföhring near Munich.
- The contractual relationship between the parties as well as all claims and titles arising therefrom shall be governed by the laws of the Federal Republic of Germany.
- Unless Hiprocall GmbH has given its prior written consent, the Customer shall not be entitled to assign the rights and obligations arising from this contract to any