Terms & conditions
General Terms and Conditions – miniCASTER®/nanoCASTER®
These General Terms and Conditions (hereinafter “Terms”) shall apply to all present and future business relations between TV1 GmbH (hereinafter referred to as “miniCASTER®/nanoCASTER®”) and the Purchaser even if they are not explicitly agreed on again. They shall supersede all previous agreements between the parties relating to purchase order and replace any Purchaser`s terms and conditions for such order. These Terms will specifically apply to any purchases of miniCASTER®/nanoCASTER® products through the miniCASTER®/nanoCASTER® online shop located at the URL http://shop.minicaster.com) hereinafter “Shop”).
1. Scope of application
1.1 Our products aim at the professional market. Therefore, we expect that Purchasers are acting in connection with their non-private activities, especially any commercial activities, when purchasing from miniCASTER®/nanoCASTER®. We accept, however, that individuals, which act in their capacity as consumer within the meaning of sec. 13 of the German Civil Code, may also be interested in purchasing our products. Hence, in these Terms, the term “Purchaser” may generally refer to professionals acting within the scope of their commercial activities or other activities, but eventually also end-consumers within the meaning of sec. 13 of the German Civil Code. If a Purchaser is a consumer within the meaning of sec. 13 of the German Civil Code (or other applicable law) the special stipulations of below section II. apply and modify the terms of this section I. to the extent necessary.
1.2 The Purchaser’s own general terms and conditions will not form part of the purchase agreement, unless expressly consented thereto. This is usually requiring written agreement, whilst, individual arrangements expressly remain unaffected. Counter-confirmations by the Purchaser with reference to its own general terms and conditions are hereby rejected. In particular, and without limitation, a receipt, acceptance, acknowledgement or confirmation by miniCASTER®/nanoCASTER® of any purchase order containing or referencing conflicting, different or additional terms, conditions or provisions shall not constitute a waiver, alteration or modification of these Terms. These Terms are applicable as of the date of acceptance of the purchase order in full and as the sole and exclusive agreement between miniCASTER®/nanoCASTER® and the Purchaser with regard to the order. They are an integral part of every contract, quotation or offer of miniCASTER®/nanoCASTER®.
2. Formation of contract, purchase procedure
2.1 The presentation of products in the Shop shall be deemed an invitation to offer to the Purchaser (invitatio ad offerendum) only and does not itself constitute a binding offer (e.g. pursuant to sec. 145 et seqq. of the German Civil Code (“BGB”)).
2.2 miniCASTER®/nanoCASTER® will confirm orders it receives through the Shop without undue delay by a confirmation email. This confirmation does in no event constitute a binding acceptance of the Purchaser’s order. miniCASTER®/nanoCASTER® will review an order received and in the event of acceptance, if any, will communicate its acceptance within ten working days from receipt of the respective order. The offeror agrees to be bound by his offer (and miniCASTER®/nanoCASTER® may therefore accept such offer) within 10 working days from receipt by miniCASTER®/nanoCASTER®. Working days will be established based on the German calendar, considering specifics like local public holidays. After this period, the Purchaser’s purchase offer shall no longer be binding and any correspondence by miniCASTER®/nanoCASTER® in relation thereto will constitute a binding offer by miniCASTER®/nanoCASTER®, unless specifically provided for to the contrary.
3. Pricing, payment, customs & excise
3.1 Displayed prices do include the applicable German sales tax and any other mandatory price components. Prices are stated ex-work, excluding one-way packaging which will be calculated separately and added at cost price. For non-EU Purchasers, the applicable end price, considering VAT issues, which depend on Purchaser’s location, will be displayed once the respective detail has been entered into by the Purchaser.
3.2 Together with the acceptance of the Purchaser’s offer, Purchaser will receive pro-forma invoicing for the ordered goods. Customer agrees to full advance payment of the amount stated in such invoice, without any deductions or charges, unless specifically permitted in an invoice or order confirmation. Upon receipt of the respective full amount payable, the ordered goods will be dispatched together with an original paper invoice.
3.3 miniCASTER®/nanoCASTER® is in no event responsible for any customs, duties and similar charges that the Purchaser may be required to pay upon delivery of the goods or else in conjunction with the purchase or delivery of any product, or, for the avoidance of doubt, for any information to the Purchaser in relation thereto. Any applicable duties, charges and import restrictions are the sole responsibility of the Purchaser.
3.4 The Purchaser shall only be entitled to offset payments if his own counterclaim has been recognized by a final binding court decision or if the counterclaim is uncontested.
3.5 miniCASTER®/nanoCASTER® explicitly reserves the right to assign or to factor any demands or claims arising from the business relationship with the Purchaser to any third Party.
3.6 Irrespective of method of payment used, payment shall not be deemed to have been affected before unless miniCASTER®´s/nanoCASTER®’s account has been fully and irrevocably credited with the respective amount.
4. Deliveries Delay
4.1 Any delivery dates quoted shall be approximate dates and non-binding unless otherwise specifically agreed between the parties.
4.2 If the parties, instead of agreeing a specific date of delivery, have explicitly agreed a period of time during which delivery has to take place, such period shall commence upon conclusion of contract, any (advance) payments due have been made and received and any other additional contractual preconditions are met.
4.3 miniCASTER®/nanoCASTER® shall be entitled to make reasonable partial deliveries.
4.4 Any agreed delivery dates and/or periods shall be suspended respectively extended at least for the time period of any force majeure (or, for the avoidance of doubt only, any act or omission from the sphere of the Purchaser) impeding delivery.
4.5 Unless solely caused by force majeure, if the Purchaser fails to accept delivery at the agreed delivery time, Purchaser shall nevertheless pay any part of the purchase price due upon delivery, as if delivery had taken place. miniCASTER®/nanoCASTER® shall arrange for storage of the goods at the risk and the expense of the Purchaser. miniCASTER®/nanoCASTER® shall also, if the Purchaser so requires, insure the goods at the Purchaser’s expense. Further, miniCASTER®/nanoCASTER® may by notice in writing require the Purchaser to accept delivery within a final and reasonable grace period. If Purchaser then still fails to duly and timely accept delivery, miniCASTER®/nanoCASTER® may terminate the purchase contract in whole or in part. Any additional remedies miniCASTER®/nanoCASTER® may have, including damage claims, shall remain unaffected.
4.6 In the event that miniCASTER®/nanoCASTER® is in default with delivery, the Purchaser may terminate the contract, provided that the Purchaser has by written notice set a reasonable grace period for delivery of no less than at least one third of the agreed delivery period for delivery and miniCASTER®/nanoCASTER® has not shipped the goods, or any substantial part thereof, upon expiry. Such termination shall have effect only for the outstanding part of the delivery, unless otherwise specifically agreed to the contrary or if the partial delivery received by Purchaser is useless for Purchaser.
5. Risk & reserved ownership
5.1 Risk of loss shall shift to the Purchaser upon as hand-over of the consignment to the entity transporting it (dispatch) or has else left miniCASTER®´s/nanoCASTER®’s storage area in order to be dispatched, without prejudice to the right of miniCASTER®/nanoCASTER® to rely on the benefit of the retention of title set forth below or other right hereunder. Unless otherwise agreed, all operations involving transport, handling, storage, insurance, customs and maintenance will be carried out by and be paid for by the Purchaser.
5.2 Even if dispatched or delivered contrary to above general rule of full advance payment or pursuant to specific agreement, any goods delivered will remain the property of miniCASTER® until payment has been made in full.
5.3 The Purchaser shall be entitled to resell the goods retained as miniCASTER®´s/nanoCASTER®’s property in the ordinary course of business. The Purchaser hereby assigns to miniCASTER®/nanoCASTER® all proceeds arising from such resale, in particular, without limitation the payment claims against Purchaser’s customers. The Purchaser shall be authorized to collect these receivables also after the assignment, without prejudice to miniCASTER®´s/nanoCASTER®’s right to collect these receivables itself. miniCASTER®/nanoCASTER® undertakes to refrain from doing so, however, as long as the Purchaser duly meets its remaining payment obligations. In the event that the Purchaser makes use of the authorization to collect receivables, any proceeds collected in the amount of the delivery price agreed between the Purchaser and miniCASTER®/nanoCASTER® for the respective goods shall be payable to miniCASTER®/nanoCASTER®.
5.4 miniCASTER®/nanoCASTER® undertakes to release the collateral to which miniCASTER®/nanoCASTER® is entitled in the amount in which its value exceeds the accounts receivable to be collateralised, to the extent that these have not yet been paid, by more than 20% (twenty percent).
6.1 The Purchaser is required to inspect the deliveries without undue delay upon receipt. Purchaser will notify miniCASTER®/nanoCASTER® of any apparent defects, short or wrong deliveries discovered without undue delay in writing, quoting respective detail.
6.2 Failure to notify miniCASTER®/nanoCASTER® of any apparent defects, short or wrong deliveries in due course may result in Purchaser shall losing remedies in relation thereto.
7. Warranty for defects (“Gewährleistung”)
7.1 The quality owed to the Purchaser shall be determined by the quality specifically agreed with the Purchaser or, in the absence thereof, the standard of quality as may be expected from general purpose of use presupposed and stated by miniCASTER®/nanoCASTER®, e.g. in product descriptions and similar materials.
7.2 miniCASTER®/nanoCASTER® shall be liable only for defects which occur under the specific conditions of operation as provided for in the applicable product description (e.g. temperature, humidity, etc.) and during proper and appropriate use of the goods.
7.3 Liability of miniCASTER®/nanoCASTER® will in no event extend to or cover any defects caused by incorrect installation or inappropriate maintenance, repair or alterations carried out by the Purchaser or any other third party.
7.4 Some software components of a good delivered hereunder may incorporate source code covered by open source licenses. miniCASTER®/nanoCASTER® disclaims all warranties with regard to these components. In no event shall TV1 be liable for any special, direct or indirect damages or any damages whatsoever resulting from loss of use, data or profits, arising out of or in connection with the use or the performance of these components.
7.5 Else, the respective applicable statutory provisions regarding warranty for defects shall apply. For instance, under German law, for new goods the statutory warranty period regarding warranty for defects is two years from the date of delivery of the goods to the Purchaser. Under German law, the Purchaser regularly has a right to supplementary performance of contractual duties, either by remedy of defects or by delivery of a replacement and/or subject to respective prerequisites, a right to a reduction in price, rescission of the contract and/or damage claim.
8. Limitation of liability, Product Liability, Recycling
8.1 In the event of willful intent or gross negligence of miniCASTER®/nanoCASTER®, its statutory representatives and/or vicarious agents, miniCASTER®/nanoCASTER® shall be liable pursuant to the applicable statutory provisions.
8.2 miniCASTER®/nanoCASTER® shall not be liable for slight negligence in relation to immaterial contractual duties.
8.3 Except for events of gross negligence, intent or other instances of unlimited liability described herein, miniCASTER®’s liability will be limited to the direct, typical, foreseeable damage in relation to comparable goods and contracts and there shall be no liability for either party towards the other party for loss of production, loss of profit, loss of use, loss of contracts or for any other consequential or indirect damages whatsoever.
8.4 The above-mentioned limitations of liability do not concern claims of the Purchaser arising out of compulsory statutory product liability or in the case of personal injury or damage to health, or loss of life when these can be attributed to miniCASTER®/nanoCASTER®.
8.5 Unless otherwise stated herein above, miniCASTER®´s/nanoCASTER®’s liability shall be excluded.
8.6 Any claims for damages shall become barred twelve months after Purchaser knew or should have known the fact underlying such claim.
8.7 In accordance with sec. 10 (2) 3 German Electronic Devices Act (“EDA”), Purchaser assumes full responsibility, if any, for due treatment and recycling of the purchased goods at own cost in accordance with the stipulations of the EDA within the EU and releases miniCASTER®/nanoCASTER® from any corresponding liability.
8.8 If and to the extent that Purchaser is legitimately reselling purchased goods, the Purchaser will validly agree with its customers stipulations as contained in above clause 8.7 in relation to recycling and release from liability. Else, the purchaser will remain liable pursuant to the legal obligations and above clause 8.7 and miniCASTER®/nanoCASTER® will have no obligation and bear no liability in relation thereto.
II. Special terms for consumers
If the Purchaser is a consumer pursuant to applicable consumer protection laws or similar regulations, the following shall apply without any restriction or prejudice to any rights the Purchaser may have at law.
9. Right of revocation for international consumers
Certain Purchasers, namely private end-consumers may under applicable laws have a general right of revocation, especially pursuant to EU-consumer protection legislation. Nothing herein restricts or derogates any such right a Purchaser may have, irrespective of his location. The Purchaser will receive notice of the German law prerequisites of the revocation right and miniCASTER®/nanoCASTER® commits to apply the revocation right for consumers under German law, irrespective of whether the consumer has such right by operation of applicable (including local) law and without prejudice to any more beneficial rights under any applicable (including local) law, if any.
10. Consumer information
10.1 For any orders through the Shop the only available contractual language is English. A specific contractual text will not be stored by and thus cannot be accessed by the Purchaser.
10.2 Stipulations on the applicable warranty are contained in above clauses 7. and 8.
11. Excluded provisions
The following clauses shall not apply, if the Purchaser is a consumer pursuant to German law: 4.1 (delivery dates), 4.3 (partial delivery), 5.1 (transport risk), 8.6 (limitation in time), 6.1 (inspection), (responsibility to recycle).
12. Data protection
12.1 miniCASTER®/nanoCASTER® collects, stores and uses personal identifiable information (“PII”) in compliance with the provisions of the German data protection law (BDSG) and the German telemedia act (TMG).
12.2 miniCASTER®/nanoCASTER® will store any data pertaining to an order, including any PII (Purchaser details, name of articles, quantity, price, method of payment/delivery) electronically.
12.3 Customer data is collected, stored and used only for the purpose of the implementation of a contract, unless the Purchaser has either given explicit consent to other uses or such are permitted by applicable laws. Thus, miniCASTER®/nanoCASTER® will only pass on PII to third parties to the extent necessary to perform the sales contract (e.g. instruct delivery services, facilitate payment processing) or as required by law.
12.4 The Purchaser may at any time and free of charge demand from miniCASTER®/nanoCASTER® information on his PII stored upon appropriate identification. The Purchaser has the right to have PII corrected, deleted or blocked, depending on applicable legal obligations for miniCASTER®/nanoCASTER® to retain certain commercial data.
12.5 Further information on miniCASTER®/nanoCASTER® processing of data, especially on the Shop, can be found here http://www.miniCASTER.com/privacy/
13. Intellectual Property, Open Source Software
13.1 With the exceptions only of certain open source software elements (“OSS”), if any, miniCASTER®/nanoCASTER® is the exclusive owner of all intellectual property rights, including trademark and copyright, in or in relation to the goods and drawings or other documentation relating to the good. Purchase of a miniCASTER®/nanoCASTER® does not transfer any IPR or grant any respective license and the IPR may not be exploited nor made available to third parties without prior approval by miniCASTER®/nanoCASTER® save as permitted by law.
13.2 Some software components of a good delivered hereunder may incorporate source code covered by open source licenses. For these components the provisions of the respective licenses apply.
14. Support, Repository Service, content distribution networks (CDNs)
14.1 Certain functionalities of products offered by miniCASTER®/nanoCASTER® may on be accessible through an internet connection. This may for instance include first use of certain devices, which requires registration with a Repository Service provided by the manufacturer during the usual product lifecycle. 14.2 The Repository Service may used by the manufacturer, or miniCASTER®/nanoCASTER® in its behalf, to offer certain functionalities of products distributed and sold by miniCASTER®/nanoCASTER®, including automated updates to firmware and other support functionalities.
14.3 The playout (streaming) of content requires connection to a suitable content distribution network (CDN). Any cost associated therewith, as well as of any other technological or other infrastructure necessary to make use of the product purchased are the sole responsibility of the customer.
14.4 miniCASTER®/nanoCASTER® may offer supplementary services, including maintenance and support service, subject and pursuant to separate agreements with the customer.
15. Closing provisions, applicable law, severability
15.1 If any term or stipulation herein is or is held invalid or unenforceable, the remaining provisions shall remain unaffected thereby.
15.2 The contractual relationship between the parties will be governed exclusively by German law without its conflict of law principles and the UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
15.3 If the Purchaser is not a consumer pursuant to applicable laws, then the exclusive place of jurisdiction for all disputes arising shall be the principal place of business of miniCASTER®/nanoCASTER®.
Version: March 2012