General terms and conditions

This English translation is provided for convenience only. In case of discrepancies, the German version is legally binding. German version

Scope

The supplies, services and offers of High Professional Callmanagement AG (hereinafter “Hiprocall GmbH”) are provided exclusively on the basis of these terms and conditions (hereinafter “GTC”).
Deviating terms and conditions of the customer shall not apply. This shall also apply if Hiprocall GmbH does not expressly object to them. Hiprocall GmbH shall only be bound by terms and conditions of the customer if it has expressly agreed in writing to their validity.

§ 1 Offer and conclusion of contract; offer documents

The presentation of the supplies and services in the online shop does not constitute a binding offer by Hiprocall GmbH. It is an invitation to the customer to submit a binding offer to Hiprocall GmbH.
Every order placed by the customer constitutes a binding offer to conclude a contract for the supplies and services. By submitting the order in the online shop, the customer makes such an offer to acquire the supplies and services contained in the shopping basket. In doing so, the customer also acknowledges these GTC as solely authoritative for the legal relationship with Hiprocall GmbH.
The contract is only concluded upon acceptance by Hiprocall GmbH, in that Hiprocall GmbH sends the customer an express order acceptance or provides the ordered supply and service.
If Hiprocall GmbH sends an offer to customers who are entrepreneurs (Unternehmer), this offer is subject to change and non-binding (freibleibend).
Hiprocall GmbH reserves the property rights, copyrights and industrial property rights, in particular the rights to apply for registrable rights, to all documents and other supplements to offers provided to the customer in connection with an offer. The proposals, concepts, documents, specifications, price lists, etc. made available at the offer stage are strictly confidential and may neither be used by the customer nor made accessible to third parties. This shall also apply if no copyright or other protection exists in respect of the offer documents.

§ 2 Description of services

Hiprocall GmbH provides its services in the field of planning and creating audio productions, in particular the creation and installation of individual answering machine announcements and on-hold queues in the field of communications technology, in particular mobile and fixed-line telephony. The term audio production within the meaning of the GTC also includes programmes and contributions for broadcasters, operators of telecommunications services and other third parties.
The services of Hiprocall GmbH also include, in particular, consulting, training and concept development in the field of information technology and telecommunications.

§ 3 Customer’s obligations to cooperate

The customer undertakes to deliver to Hiprocall GmbH, at its own expense, all available documents, materials, data and information required for the proper execution of the order. In particular, the customer undertakes to complete in full the questionnaires handed over for the provision of installation, production, conception or consulting services and to make them available to Hiprocall GmbH.
If the customer supplies text and music productions (“third-party production”), the rights must be clarified by the customer independently in advance. In particular, in the case of text and music productions subject to exploitation by GEMA or another collecting society, the customer must carry out registration and licensing independently and bear the fees incurred accordingly.
The customer warrants that it holds the necessary rights to the elements and materials supplied by it and to be used by Hiprocall GmbH or its subcontractors. This includes in particular the right to grant the necessary rights to Hiprocall GmbH, in particular the right of reproduction, editing and synchronisation together with publication, distribution and making available to the public of the edited version, reproduction and broadcasting, in particular in edited form, as well as name rights for the purpose of use within the framework of this contract.
Insofar as texts, pieces of music, sound sequences or similar audio production elements are made available to the customer for selection before the setting to sound of audio productions (spots, acoustic company logos, jingles, etc.), the customer is obliged, pursuant to § 642 BGB (German Civil Code), to cooperate in the creation of the audio production by notifying Hiprocall GmbH within a period of 14 days of receipt of the proposals or concepts which of the variants are to be implemented in the audio production by Hiprocall GmbH. If the customer is an entrepreneur and fails to fulfil this obligation within this period, the customer’s silence shall be deemed a request to Hiprocall GmbH to exercise the right of choice in place of the customer. In this case, Hiprocall GmbH is authorised by the customer to carry out the artistic design of the audio production, including the selection of text, music and sound sequences, freely and without restriction itself. Upon receipt of the proposals or concepts, Hiprocall GmbH will once again draw the customer’s attention to the consequences of not exercising the right of choice within the period.
If the subject matter of the contract includes, at least in part, a consulting or training service, the customer is obliged, upon a corresponding request by Hiprocall GmbH, to propose a date for the provision of the service in due time. If this does not happen within the set period, the customer is in default of acceptance. If the customer then again fails to propose a date within the set period even after a renewed request by Hiprocall GmbH, Hiprocall GmbH is entitled to demand the full remuneration even without subsequent performance. § 615 sentence 2 is expressly excluded. This shall apply accordingly if the customer fails to attend an agreed appointment.

§ 4 Delivery and provision

Delivery periods and completion periods are non-binding unless expressly agreed otherwise. Binding delivery and completion periods shall be extended accordingly if the customer does not fulfil its obligations to cooperate pursuant to § 3 of these GTC in due time.
Unless expressly agreed otherwise, the audio productions are uploaded by Hiprocall GmbH directly into the voicemail system of the telecommunications provider for the customer’s telephone number.
Should the supply and service no longer be available despite the prior conclusion of a corresponding contract with Hiprocall GmbH, Hiprocall GmbH will inform the customer of the unavailability without undue delay. In the event that the supply and service is unavailable, both parties are entitled to withdraw from the contract. In the event of withdrawal by Hiprocall GmbH, any consideration already provided by the customer will be refunded without undue delay.
If the customer is an entrepreneur and is in default of acceptance or fails to fulfil its obligations to cooperate under § 3 of these GTC, Hiprocall GmbH is entitled to demand from the customer compensation for additional expenses in the amount of 0.5% of the agreed net price for each commenced calendar day of default, with regard to the obligations to cooperate, however, only if a specific date had been set for the act of cooperation. The customer reserves the right to prove that no additional expenses were incurred at all or that they were significantly lower than the lump sum. Hiprocall GmbH reserves the right to prove higher additional expenses.
If the customer is an entrepreneur and an order is not carried out at all for reasons for which Hiprocall is not responsible, Hiprocall GmbH may, instead of the lump-sum compensation for expenses mentioned in paragraph 4, charge a cancellation fee in the amount of 50% of the agreed fee. If the customer is an entrepreneur and an order that has already been commenced is not completed for reasons for which Hiprocall is not responsible, Hiprocall GmbH is entitled to the full fee. An order is deemed to have been commenced when Hiprocall GmbH has begun to perform the contractually owed service. Here too, the customer remains entitled to prove that no damage was incurred at all or that it was significantly lower than the lump sum.
If the customer is an entrepreneur, Hiprocall GmbH reserves the right of correct and timely self-supply (Selbstbelieferungsvorbehalt).
Hiprocall GmbH is entitled at any time to commission affiliated companies or subcontractors to fulfil the orders and perform the services.

§ 5 Passing of risk

If the customer is an entrepreneur, the supplies and services are shipped at the expense and risk of the customer. The risk passes to the customer who is an entrepreneur as soon as the consignment has been handed over to the person carrying out the transport or has left the warehouse for the purpose of shipment.

§ 6 Acceptance of works

The customer is obliged to accept a work that has been produced in accordance with the contract and is capable of acceptance within 10 calendar days of its provision. If no acceptance or complaint is made within this period, the work shall be deemed accepted. Upon provision of the supplies and services, Hiprocall GmbH will once again draw the customer’s attention to the consequences of failing to declare acceptance within the period.

§ 7 Liability for defects in respect of services under purchase contracts and contracts for work and materials

The following provisions on liability for defects apply only to customers who are entrepreneurs.

A material defect exists if the services under the purchase contract or the contract for work and materials (Werklieferungsvertrag) do not have the contractually agreed quality. The contractually agreed quality results conclusively from the description of services in the respective contract. A defect of title exists if the rights required for the contractual use are not effectively granted to the customer.
If the customer is a merchant (Kaufmann), it shall inspect the supplies and services for any defects without undue delay and notify Hiprocall GmbH of such defects without undue delay (§ 377 HGB, German Commercial Code). If the customer breaches this obligation, the following rights with regard to such material defects as it could have discovered and given notice of had it duly fulfilled this obligation to inspect and give notice of defects are excluded.
Obvious defects must be notified to Hiprocall GmbH by the customer in writing within 10 calendar days of receipt of the delivery.
Insofar as the supplies and services of Hiprocall GmbH are defective, Hiprocall GmbH is obliged, by way of subsequent performance (Nacherfüllung), at its option either to remedy these defects or to deliver a defect-free item. If subsequent performance fails, the customer reserves the right to reduce the price or, at its option, to withdraw from the contract.
Instead of or in addition to the right to reduce the remuneration or to withdraw from the contract, the customer has the right, provided that the defect constitutes a breach of duty for which Hiprocall GmbH is responsible, to claim damages in lieu of performance in accordance with the provisions of § 11 below. Instead of damages in lieu of performance, the customer may, in accordance with the provisions of clause 11 below, claim reimbursement of such futile expenses as it incurred in reliance on receiving the performance and could reasonably incur, unless their purpose would not have been achieved even without the breach of duty by Hiprocall GmbH.
The customer’s right to claim damages for breach of duty under the conditions of § 280 BGB in accordance with the provisions of § 11 below remains unaffected.
Provisions of these GTC by which the rights in respect of a defect are excluded or restricted shall not apply if Hiprocall GmbH has fraudulently concealed the defect or has assumed a guarantee for the quality of the supply and service that is the subject matter of the contract.
Liability for defects does not extend to defects caused by deviation from the operating conditions intended for the supplies and services and specified in the description of services, or by the use of hardware or an operating environment other than that specified. Liability for defects is excluded if the customer or third parties have modified the supplies and services or parts thereof without the consent of Hiprocall GmbH, unless the customer proves that the defects that have occurred are not attributable to this.
Without additional express written confirmation by Hiprocall GmbH, technical data, product information and descriptions do not constitute a guarantee, an agreement on quality or an assurance of characteristics.
Claims of the customer based on a material defect or a defect of title become time-barred – except in the case of claims for damages – after one (1) year.
Mandatory statutory recourse claims of the customer against Hiprocall GmbH remain unaffected by this.

§ 8 Remuneration and terms of payment

If no express price agreement has been made for a service, the general list prices of the respective price list of Hiprocall GmbH shall apply. All prices stated are gross prices including VAT.
If the customer is an entrepreneur, the following payment due dates apply, unless expressly agreed otherwise in writing, to orders with a total net order volume of more than € 3,000: 30% of the total gross order price is due upon placing the order, 30% when Hiprocall GmbH is ready to deliver and 40% upon acceptance of the service by the customer. On each of these due dates, Hiprocall GmbH will request the customer to pay by issuing an invoice. Otherwise, unless expressly agreed otherwise, invoicing takes place upon delivery.
The claim for payment becomes due upon receipt of the invoice. In the event of non-payment of the claim for payment, the customer is in default at the latest 30 days after the due date and receipt of the invoice or an equivalent payment statement.
Set-off against claims of Hiprocall GmbH is only permissible insofar as the corresponding counterclaim has been finally determined by a court (rechtskräftig festgestellt) or acknowledged by Hiprocall GmbH. The customer is only entitled to assert a right of retention on account of counterclaims arising from the same contractual relationship.

§ 9 Retention of title

Hiprocall GmbH remains the owner of the objects of the contract (goods subject to retention of title) until the remuneration has been paid in full. After any withdrawal, Hiprocall GmbH has the right to demand the return of the object of the contract, to sell it otherwise or to dispose of it in any other way. The customer may not dispose of the goods subject to retention of title.
In the event of access by third parties to goods subject to retention of title, the customer is obliged to point out that Hiprocall GmbH has reserved title. The customer will notify Hiprocall GmbH without undue delay and thus enable it to enforce its property rights. If Hiprocall GmbH incurs judicial or extrajudicial costs in enforcing its rights in this case and the third party is unable to reimburse Hiprocall GmbH for these costs, the customer shall be liable for them.

§ 10 Copyright and rights of use

Hiprocall GmbH is the author or holder of the rights of use of the text and music productions and thus also of the entire audio production, provided that these are text and music productions of Hiprocall GmbH or works produced on its behalf (“own production”).
Upon payment in full, Hiprocall GmbH grants the customer a simple (non-exclusive), permanent and transferable right of use in the audio production for its own productions.
Hiprocall GmbH is entitled to sign audio and other data carriers created by it. It is further entitled to refer in its own advertising to its work for the customer, including by using any company logos and company lettering (reference listing), and to publish the works created for the purpose of its own advertising or otherwise make them accessible to third parties.

§ 11 Liability

In the event of intent and gross negligence, Hiprocall GmbH shall be liable without limitation in accordance with the statutory provisions.
Hiprocall GmbH shall furthermore be liable in the event of a slightly negligent breach of material contractual obligations by Hiprocall, its legal representatives, employees and vicarious agents. Material contractual obligations are those whose fulfilment makes the proper performance of the contract possible in the first place, whose breach jeopardises the achievement of the purpose of the contract and on whose observance the customer regularly relies. In this case, liability is limited in amount to the foreseeable damage typical for the contract. Hiprocall GmbH shall not be liable for the slightly negligent breach of other obligations.
The above exclusions of liability do not apply in the event of injury to life, body and health. Liability under the Produkthaftungsgesetz (German Product Liability Act) remains unaffected.
Liability for the restoration of the customer’s data is otherwise limited in amount to the costs necessary to restore the data if it is backed up regularly and in a manner appropriate to the risk, or can otherwise be reconstructed from machine-readable data material with reasonable effort.
The above provisions also apply mutatis mutandis to the liability of Hiprocall GmbH with regard to the reimbursement of futile expenses.

§ 12 Proof of creditworthiness

If circumstances arise that give rise to doubts about the customer’s ability or willingness to pay, and also if the customer is in default with payments owed to Hiprocall GmbH, Hiprocall GmbH is entitled to withhold deliveries until full advance payment has been made or appropriate security has been provided. If the customer does not comply with a corresponding request within a reasonable period, Hiprocall GmbH is entitled to withdraw from the contract in whole or in part; further claims of Hiprocall GmbH remain unaffected.

§ 13 Confidentiality and data protection

Hiprocall GmbH undertakes to safeguard all business secrets of which it becomes aware in the course of its cooperation with the customer with the care of a prudent businessman. Hiprocall GmbH shall treat information, data and documents obtained in this respect confidentially. These obligations of care and confidentiality also apply in the event that a contract is not concluded. They also continue to apply after the termination of the contractual relationship.
The customer undertakes to clearly mark as such any working documents handed over or made available to Hiprocall GmbH that have not been released for publication and that are to be treated confidentially. Hiprocall GmbH is entitled to publish or otherwise make known to third parties all working documents not marked accordingly.
The personal data voluntarily provided by the customer in the course of its order will be used exclusively in compliance with the Bundesdatenschutzgesetz (German Federal Data Protection Act, BDSG) and the Telemediengesetz (German Telemedia Act, TMG).
Personal data of the customer is only collected if and insofar as the customer voluntarily provides such data when using the (online) offering of Hiprocall GmbH. This data is only processed and passed on to third parties insofar as this is necessary for the performance of the contractual relationships between Hiprocall GmbH and the customer.
The customer has the right at any time to obtain information free of charge about its stored personal data and, where applicable, a right to rectification, blocking and deletion of this data.
Hiprocall GmbH reserves the right to create usage profiles using pseudonyms by means of the customer data collected for the purposes of advertising, market research or the needs-based design of its offerings. The customer is entitled to object to this use of its usage data at any time.
Questions regarding the collection, processing or use of the customer’s personal data, requests for information, rectification, blocking or deletion of the data, as well as the withdrawal of consents given, may be addressed to Hiprocall GmbH at the address stated in § 14 clause 1 of these GTC.

§ 14 Right of withdrawal and instructions on withdrawal

You may withdraw your contractual declaration within two weeks without giving reasons in text form (e.g. letter, fax, email) or by returning the goods. The period begins at the earliest upon receipt of these instructions on the right of withdrawal in text form, but in the case of the delivery of goods not before receipt of the goods by the customer, and in the case of the provision of services not before conclusion of the contract, and also not before fulfilment of our information obligations pursuant to § 312c(2) BGB in conjunction with § 1(1), (2) and (4) BGB-InfoV and our obligations pursuant to § 312e(1) sentence 1 BGB in conjunction with § 3 BGB-InfoV. Timely dispatch of the withdrawal is sufficient to comply with the withdrawal period. The withdrawal must be addressed to: Hiprocall GmbH, Neumarkter Str. 21, 81673 München.
In the event of an effective withdrawal, the performances received by both parties must be returned and any benefits derived (e.g. interest) must be surrendered. If you are unable to return the performance received to us in whole or in part, or only in a deteriorated condition, you may have to compensate us for the value to that extent. In the case of the handing over of goods, this does not apply if the deterioration of the goods is exclusively due to their inspection – as would have been possible for you in a shop, for example. Otherwise, you can avoid the obligation to pay compensation for a deterioration caused by the intended use of the goods by not using the goods as if they were your property and by refraining from anything that impairs their value. Goods that can be sent by parcel are to be returned at our expense and risk. Goods that cannot be sent by parcel will be collected from you. Obligations to reimburse payments must be fulfilled within 30 days. For you, the period begins with the dispatch of your notice of withdrawal or of the goods; for us, it begins with their receipt.
Your right of withdrawal does not apply to contracts for the delivery of goods that are manufactured to your specifications or are clearly tailored to your personal needs, or that by their nature are not suitable for return. In the case of a service, your right of withdrawal expires prematurely if your contractual partner has begun to perform the service with your express consent before the end of the withdrawal period or if you have initiated this yourself.

§ 15 Final provisions

If the customer is an entrepreneur or has no general place of jurisdiction in Germany, the place of jurisdiction is Munich. The place of performance for all services of Hiprocall GmbH is Munich.
The contractual relationships between the parties and all claims and rights arising therefrom are governed by German law.
The customer may only assign rights and obligations under this contract to third parties with the prior written consent of Hiprocall GmbH.