Terms & Conditions

General terms of sale and delivery of snom technology AG

1. Validity

(1) The following conditions are valid for our deliveries and services, and also for information, consultation, and repairs. snom expressly opposes the terms of business and conditions of purchase of the contractual partner.

(2) Conditions of the customer are only binding to us if and insofar as snom expressly approves them in writing. Our conditions are also valid if snom carries out the deliveries unreservedly with knowledge of conditions of the customer that are adverse to or deviate from our conditions.

(3) Agreements deviating from our conditions can only be made in writing and are valid only for the contract in question and not for following contracts, insofar as this is not explicitly agreed otherwise. This also applies to any amendment of this clause.

2. Offer and conclusion of contract

(1) Up until the final confirmation of the order, our offers are non-binding and without obligation. A contract for supply of goods or any other type of contract is only effected when snom confirms the customer order or other commission in writing or the merchandise has been delivered.

(2) snom does not take any responsibility for errors arising from unclear or incomplete information in the order or in the documents sent. In such cases, the customer is required to carry any additional costs incurred.

3. Prices and terms of payment

(1) Unless a different price has been expressly agreed upon in writing, the price in force in accordance with our applicable price list on the day of delivery is valid.

(2) All prices are net prices plus the statutory value-added tax at the valid amount.

(3) Due to fluctuating exchange rates, snom reserves the right to change the prices stated in the price list at any time. Notification of possible price change will be provided in good time before execution of the order, and with contracts with consumers, with indication of the changed exchange rate. In the case of an increase in excess of 20% of the previous price, the customer has the right to withdraw from the contract.

(4) The prices cited by us are, unless otherwise agreed in writing, ex factory or distribution center and are net prices. The additionally incurred actual postage and packaging costs are also payable.

(5) For first orders, snom only accepts cash on delivery or bank direct debit (also credit card), unless it has expressly been agreed otherwise in writing.

(6) As long as nothing else arises from the order confirmation, invoice amounts (without deduction) are payable within 8 days of the invoice date. If payments are made late, further deliveries will be made without special notice at our discretion only against cash on delivery or prepayment.

(7) The customer is in default of payment if payment as not been made after 14 days from the date of delivery or receipt of invoice. The statutory regulation on occurrence of default or delay (§ 286 German Civil Code) remains otherwise unaffected. When a customer is in default of payment, snom is entitled to demand default interest in the amount of 5% p.a. above the basic interest rate of the European Central Bank effective at the time of the occurrence of the delay. If the customer is not a consumer, the interest on arrears increases to 8% p.a. above the basic rate. The enforcement of a higher claim for damages caused by delay remains unaffected.

(8) The deduction of a discount requires special written agreement. Agreed discounts are not granted if the customer is in arrears with the payment of earlier deliveries.

(9) The customer is only entitled to rights of setoff or retention if his counterclaims have become res judicata or are recognized by snom. Customers who are not merchants are only entitled to a right of retention with regard to counterclaims which have arisen from the same contractual relationship.

(10) If the customer does not meet the agreed payment deadlines, if the customer is in breach of other contractual agreements, or if after acceptance of the order snom becomes aware of facts that allow reasonable doubt as to the creditworthiness of the customer, snom reserves the right to demand full payment or relevant sureties before the delivery, and, following unsuccessful setting and expiry of a reasonable deadline, to withdraw from the contract or demand compensation. Evidence of substantial deterioration in capital exists when, in the opinion of a prudent merchant, negative information has been furnished by a bank, a credit enquiry agency, or a company in a business relationship with the customer. If the delivery has already been made, the invoice amounts in question will be due immediately regardless of agreed terms of payment. Moreover, snom can prohibit the resale of the goods delivered under retention of ownership, demand their return, or the transfer of indirect property at the cost of the customer and, where applicable, withdraw a direct debit agreement.

4. Performance periods, delay, and replacement

(1) The performance periods and delivery deadlines named by snom are non-binding unless otherwise expressly agreed in writing. Insofar as binding deadlines are agreed, they begin on the date of the confirmation of the order, but not before receipt of any agreed deposits and not before explicit clarification of all details of the order. They are considered as observed with the notification of readiness to dispatch if through no fault of our own the goods cannot be dispatched on time.

(2) Agreed deadlines and dates are extended – without affecting our rights due to delay of the customer – by the period of time in which the customer is in arrears in terms of his obligations towards snom.

(3) When delivery deadlines are not expressly described as fixed in the order confirmation, the customer can set us a reasonable deadline for performance. Only upon expiry of this extension can snom be in default.

In this case the customer can withdraw from the contract if he has not been notified by this time that the goods are ready to be dispatched and snom is responsible for the delay.

(4) Cases of force majeure and other events over which snom has no influence and which render delivery considerably more difficult or impossible, for instance breakdowns, damages, or loss in transit, strikes, lawful lockouts, official measures, failure to deliver, or incorrect or delayed delivery on the part of our distributors resulting from the same reasons mentioned, entitle snom to defer the delivery by the duration of the hindrance and a reasonable start-up period or to withdraw from the contract due to the non-fulfilled part.

Insofar as the customer cannot reasonably be expected to accept the delay, he must send snom without delay a written demand for a statement whether snom wanst to withdraw from the contract or deliver within a reasonable deadline. If snom does not provide this statement, the customer may withdraw from the contract as long as the contract has not been at least partially fulfilled by snom.

(5) If snom fails to deliver for reasons snom is responsible for, the customer can set snom a reasonable extension with the indication that he will refuse to accept the object of purchase once this deadline has expired. Upon unsuccessful expiry of the final deadline the customer is entitled to withdraw from the contract with a written explanation or to demand compensation due to non-fulfillment. The customer can, however, demand compensation for damages caused by delay or non-fulfillment only if a willful or gross breach of duty by us or one of our legal representatives or employees has occurred, in the case of ordinary negligence, however, up to the amount of the typical and foreseeable damage only when a breach of substantial obligations endangers the purpose of the contract. In other respects, our liability for ordinary negligence is limited to 50% of the incurred damage.

(6) snom reserves the right to make construction or design modifications that can be attributed to the improvement of the technology or to legislative requirements during the delivery time as long as the goods are not materially changed and the customer can reasonably be expected to accept them.

(7) snom is entitled to make partial deliveries. Each partial delivery can be invoiced separately by snom. However, this right does not influence the prices and terms of subparagraph 3 (4) of these conditions.

5. Extended retention of ownership

(1) snom retains ownership of the goods (goods subject to retention of ownership clause) until all claims of the business relationship including claims which may arise in the future from contracts or contracts entered into simultaneously or at a later date are settled. This also applies when separately indicated claims are paid.

(2) The customer is entitled to resell the goods subject to retention of ownership clause in the ordinary course of business. He is not entitled to other disposal of the goods.

(3) The customer relinquishes to us herewith all accounts receivable, including all ancillary rights that arise from the resale. Until the authorization is revoked at our discretion, the customer remains authorized to collect the accounts receivable in his own name as long as he duly fulfils his obligations to snom. snom will only utilize the right to revoke the authorization in the cases named under subparagraph 3 (10).

(4) On snom’s demand the customer is obliged - as long as we do not inform the purchaser ourselves – to inform the purchaser of the assignment to snom without delay and to furnish snom proof of the notification as well as comprehensive information with regard to the assigned accounts and the person of the garnishee. He is obliged to give snom all the particulars required for the collection of the account receivable and to deliver the supporting documents to snom.

(5) On the customer’s demand snom is obliged to release the securities insofar as their realizable value exceeds snom’s accounts receivable by more than 20%. snom reserves the right to choose the securities to be released.

(6) In the case of distraints or other encroachments of third parties, snom is to be informed in writing without delay.

(7) In case of payment default or any other behavior of the customer in breach of the contract or in the case that snom becomes aware of circumstances that give rise to reasonable doubt about the creditworthiness of the customer, snom is entitled to prohibit the resale of goods subject to the retention of ownership clause, to demand their return or the concession of indirect ownership to snom at the cost of the seller, to revoke a direct debit authorization and/or demand the payment of the amounts collected by the customer or, if the goods have been resold but not paid for or only paid for in part, to demand payment directly from the purchaser of the customer. In the exercising of these rights a withdrawal from the contract only takes place if this is expressly declared by snom in writing.

(8) snom is entitled to demand return of the objects for which snom has retention of ownership if snom becomes aware of circumstances that appear to endanger the fulfillment of their claims by the customer. Against this return claim a right of retention can only be asserted in the framework of the abovementioned subparagraph 3 (9). The customer declares herewith his consent that, for this purpose, the persons commissioned by snom to collect can enter and drive onto the property where the objects are found.

6. Warranty and liability

(1) All information about snom’s products, in particular the diagrams, specifications and performance figures in our offers and catalogues, are average values to be seen as approximations.

This information does not represent the receipt of a warranty or a procurement risk, but rather only descriptions and characterizations of the goods. The same applies to information and advice with regard to our products. Unless limitations for permissible deviations have been expressly established and described as such in the confirmation of the order, the deviations customary in the business (allowable variations) are permissible.

(2) When goods have been sold as downgraded or used goods, the customer does not have any claims for possible defects. § 444 German Civil Code remains unaffected.

(3) Upon receiving the goods, the customer is obliged to carefully examine them for completeness and regularity without delay, even if a sample has been provided beforehand. The delivery will be considered as approved if written notice of defects is not received within five working days of arrival of the goods at their destination or, if the defect was not noticeable in an ordinary inspection, within five days of its discovery. Our field staff is not authorized to accept notification of defects.

(4) The customer is obliged to give us the opportunity to inspect the defects. If he refuses to do so, snom is also discharged from any liability for defects.

(5) When the notification of defects is justified, snom will - at snom’s discretion - provide warranty through repair or replacement. If the repairs or the replacement fails, the customer can demand a reduction of the purchase price or a rescission of the contract.

(6) Our liability, for whatever legal justification, is limited to intent and gross negligence. In the case of ordinary negligence, snom is liable only when a violation of essential obligations endangers the purpose of the contract and only for the typical and foreseeable damage. This limitation of liability does not apply

- to damages resulting from the lack of a warranty, when it was the warranty that should have prevented the occurrence of damage,

- when primary duties of the contract or duties essential to the contract were violated by us,

- to demands arising from the product liability law,

- to damages from injury to life, body, or health

(7) Goods acknowledged to be defective will only be taken back by us with our written agreement. The goods are to be returned intact and in their original packaging (complete, undamaged original packaging, operating instructions, complete packing material, etc.). Goods sent back to us postage unpaid will not be accepted and will be returned to the sender at the sender’s own cost. The customer must provide proof of the shipping costs. They will only be reimbursed when the notification of defect is justified.

(8) Claims arising from a defect become statute-barred after one year from delivery of the item.

(9) Paragraphs 2, 3, and 5 do not apply to consumer goods sales contracts (§ 474 German Civil Code). In the case of consumer goods sales contracts, the statute of limitation of paragraph 6 (8) refers solely to claims arising from compensation for damages.

7. Compensation of expenditures caused by failure
    to take delivery of goods

If the customer does not accept delivery of the merchandise, snom is entitled at our option to demand fulfillment or our expenditures in the amount of a flat rate of 20% of the net product value and any shipping costs already incurred.

8. Changes

snom reserves the right to change these general terms of sale and delivery at any time. Changes will take effect on the date announced. snom will send the customer the changed terms and conditions in due time before they take effect. If no date of entry into force is announced, the changes will become effective at the time the customer received them.

9. Data

snom collects personal data for the purpose of carrying out orders for our customers, and process and uses this data. In particular, these data also include the IP address assigned to you upon the purchase of certain products. snom is entitled to use the collected data for all purposes in the framework of our business operations, in particular to analyze, sort, compare, and also to use it for advertising purposes. snom may also commission third parties to carry out such activities. snom is not entitled to provide the data to third parties for its own purposes. You expressly agree to the collection, processing, and use of the personal data. Customers who are working as intermediaries are obliged to impose the obligations under this clause to their customers to the relevant extent.

10. Protection of industrial property

(1) The customer acknowledges our patent rights insofar as these exist, as well as our copyrights and other trademark rights on the goods sold by us. In particular, the customer is prohibited to make any reproductions going beyond the purpose of the contract, build unauthorized copies or imitations, or trade reproduced, copied, or imitated goods.

(2) The analysis of the structure and function of computer programs developed by snom (so-called “reverse engineering”) is not permitted without our written agreement.

11. Place of performance, place of jurisdiction

The place of performance for both contract partners is Berlin. The place of jurisdiction – including terms of actions to assert claims concerning payments of checks or bills of exchange – is Berlin, when our contract partner is a merchant or residing abroad.

This English version of snom’s terms and conditions is a true and correct translation of the original German document. In case of any court actions, the German original will be used.

12. Export, delivery to foreign contract partners

(1) German law also applies exclusively when snom makes deliveries abroad and to foreign contract partners. The validity of the international trade law of the United Nations (CISG – Convention on Contracts for the International Sale of Goods) is expressly contracted out.

(2) When our purchasers export goods to areas outside the Federal Republic of Germany, snom does not accept any liability if our products infringe upon the trade mark rights of a third party. Our purchaser is obliged to compensate for damages caused by us when he exports goods that were not expressly delivered by us to be exported.

(3) The export of our goods to certain countries may possibly violate foreign trade and payment law and/or statutory export bans. snom is hereby informing its customers that they must check the permissibility of such delivery themselves and at their own responsibility. The customer is obliged to indemnify snom against any type of damage incurred through an illegal delivery he is responsible for.

13. Final provisions

(1) To comply with the required written form when concluding and performing the contracts entered into by snom, declarations sent by fax or e-mail are also sufficient.

(2) Insofar as not agreed otherwise, the transfer of rights and obligations from this contract by the customer to third parties requires our prior written consent. snom will only refuse to give this consent for good cause.

14. Severability clause

If a provision in these conditions is or becomes invalid, it shall not affect any part of the remaining contract. An invalid provision is to be replaced by a valid provision that approximates the commercial purpose of the agreement and the presumed intent of the parties involved. The same applies to regulation gaps in the contract that cannot be filled through interpretation.

snom technology AG
Charlottenstr. 68-71
10117 Berlin

Amtsgericht Charlottenburg, HRB 61842

As of 03/2008