Right of Withdrawal
You have the right to withdraw from the purchase/contract for goods purchased online within fourteen days without giving any reason. The withdrawal period is fourteen days from the day on which you or a third party designated by you has taken possession of the goods/licences.
To exercise your right of withdrawal, you must inform
innoEnergy GmbH
Sunnewiesstrasse 9
CH-9508 Weingarten
Mail: info@inno.energy
of your decision to withdraw from this contract by means of an unequivocal statement (e.g. a letter sent by post or e-mail). To meet the withdrawal deadline, it is sufficient for you to send your communication concerning the exercise of the right of withdrawal before the withdrawal period has expired (postmark).
You may use the attached model withdrawal form for this purpose, but this is not mandatory.
Consequences of Withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than fourteen days from the day on which we received notification of your withdrawal from this contract. We may withhold reimbursement until we have received the goods back or you have supplied evidence of having sent back the goods, whichever is the earlier.
You shall send back or hand over the goods without undue delay and in any event not later than fourteen days from the day on which you inform us of your withdrawal from this contract to
innoEnergy GmbH
Sunnewiesstrasse 9
CH-9508 Weingarten
. The deadline is met if you send back the goods before the period of fourteen days has expired. You shall bear the direct cost of returning the goods.
Exceptions
Unless otherwise provided, the right of withdrawal does not apply to contracts
- – for the supply of goods which are made to the customer's specifications or are clearly tailored to personal needs
- – for the supply of hardware/software, provided that the data carriers or devices supplied have been unsealed by the consumer.
End of the Withdrawal Notice
Model Withdrawal Form
If you wish to withdraw from the contract, please complete and return this form.
To:
– by post: innoEnergy GmbH, Sunnewiesstrasse 9, 9508 Weingarten, Switzerland
I/We (*) hereby give notice that I/we (*) withdraw from my/our (*) contract for the purchase of the following goods (*)/for the provision of the following service (*):
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Ordered on (*)_____________________________/received on(*) ______________________
Name of consumer(s)
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Address of consumer(s)
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Signature of consumer(s) (only if this form is notified on paper)
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Place, date
(*) Delete as appropriate.
GTC
GENERAL TERMS AND CONDITIONS
of the company innoEnergy GmbH (Switzerland), hereinafter also referred to as the Software Manufacturer, as of 1.5.2019
1: SCOPE OF APPLICATION AND CONCLUSION OF CONTRACT
1.1) All business relationships between the Software Manufacturer and its customers shall be governed exclusively by the following General Terms and Conditions and the Software Manufacturer's price list valid at the relevant time. Deviating terms and conditions of the customer shall not apply unless they have been expressly agreed to.
1.2) A contract is concluded upon the order placed by the customer and the order confirmation or invoice issued for it by innoEnergy. The content of the contract is determined by the order confirmation or the invoice.
1.3) Separate contracts, independent of one another, shall be concluded in each case for the customer-specific development of software, the conduct of training courses, the support or maintenance of software or other services.
2: SPECIAL PROVISIONS FOR OUR PRODUCTS AND SERVICES
2.1) Subject Matter of Software Contracts – Licence Terms
2.1.1) The Software Manufacturer provides the customer with hardware with pre-installed software and the required licence, which is intended exclusively for the customer's own use. If the customer is a reseller, it may also provide hardware with the software to its own customers. However, the licence must be acquired from innoEnergy GmbH. Subject to section 2.1.3, innoEnergy GmbH remains the holder of all copyrights, in particular also in records and documentation.
2.1.2) The hardware delivered is already pre-installed. The installation of the software supplied by innoEnergy GmbH on customer-owned hardware or virtual environments is not part of the contract unless otherwise agreed.
2.1.3) The customer may use a copy of the software only on the hardware supplied by innoEnergy. If the customer is a reseller, it may, unless otherwise agreed, resell only the devices or licences acquired from innoEnergy GmbH. Use is understood to mean both the storage of the software in a temporary storage medium (RAM) and in permanent storage (in particular on a hard disk, removable disk, USB stick or CD-ROM).
2.1.4) The customer may neither rent out nor lend the licence. This also includes making the licence available to another legal entity in a shared office arrangement. The licence may only be transferred by assumption of the entire software contract. The transfer shall only be effective if the Software Manufacturer consents in writing. innoEnergy GmbH will withhold consent only in justified exceptional cases. The customer shall pay the Software Manufacturer a processing fee for the review and decision. In the event of a transfer, the customer shall hand over to the acquirer all copies of the software (including all earlier versions), the user manual and all associated documentation.
2.1.5) The customer may, at its own expense, make one copy for backup or archiving purposes, as a replacement or for troubleshooting. Where originals bear a copyright notice, the customer shall also affix this notice to copies. The customer may not reproduce records or documentation.
2.1.6) The software supplied by innoEnergy GmbH may not be reverse engineered, decompiled or disassembled.
2.1.7) Cost estimates, drawings and other documents remain the property of innoEnergy GmbH and may not be made accessible to third parties.
2.1.8) innoEnergy GmbH prosecutes copyright infringements under both civil and criminal law.
2.2) Maintenance and Support
2.2.1) Maintenance comprises the services expressly specified in the order confirmation or is governed by a special contract. Updates are governed by a separate maintenance contract.
2.2.2) Maintenance relates only to software produced by innoEnergy. If the customer sells the software, innoEnergy is no longer obliged to provide maintenance or support, even if a maintenance contract is in place. innoEnergy shall refund to the customer the fee for the remaining term of the maintenance contract only to the extent that innoEnergy GmbH saves expenses or earns profits through other use of the services.
2.2.3) In the event of default in payment by the customer, innoEnergy GmbH may suspend the further performance of maintenance or support until payment has been made in full and may demand advance payment.
2.3) Training Courses
2.3.1) innoEnergy GmbH conducts training courses at the Software Manufacturer's own training centre or, by arrangement, at the customer's premises. Participants are instructed in the operation of the Software Manufacturer's products or taught on key topics.
2.3.2) The customer may cancel a training course free of charge if the cancellation is made no later than 14 days before the start of the training course.
2.3.3) For a bindingly confirmed participation in a training course or seminar, the customer shall pay the Software Manufacturer a cancellation fee if it does not attend or does not cancel its participation within the period specified in section 2.3.2. The cancellation fee is charged as a lump sum in the amount of CHF 500.00. The customer is permitted to prove that the Software Manufacturer has incurred no damage or damage lower than the lump sum.
2.3.4) In the event of default in payment by the customer, the Software Manufacturer may refuse participation in further seminars until payment has been made in full and may demand advance payment.
2.4) Further Services
2.4.1) The Software Manufacturer performs further services for the customer insofar as these are agreed in writing.
2.4.2) The customer shall pay for further services in accordance with innoEnergy GmbH's prices for services valid at the relevant time.
3: PRICES AND TERMS OF PAYMENT, DELIVERY AND SHIPPING
3.1) Prices and Terms of Payment
3.1.1) The Software Manufacturer's price list valid at the relevant time applies. The prices in the price list are exclusive of the costs incurred for postage, packaging, insurance, travel and the applicable value added tax.
3.1.2) The Software Manufacturer's claims are due immediately unless otherwise agreed in writing.
3.1.3) In the event of default in payment, the principal/end consumer shall pay default interest of 5% in accordance with Art. 104 of the Swiss Code of Obligations (OR).
3.1.4) Customers may set off against the Software Manufacturer only with undisputed claims or claims established with legally binding effect. Rights of retention are excluded unless they are based on the same contractual relationship. The customer may exercise a right of retention only up to the amount of its claim.
3.2. Delivery and Shipping
3.2.1) The Software Manufacturer delivers the software/hardware within three weeks unless a different delivery date results from the order confirmation or the contract. The delivery period begins with the dispatch of the order confirmation. The Software Manufacturer notes the dispatch on the order confirmation itself.
3.2.2) The Software Manufacturer is bound by the delivery period only if the customer fulfils its obligations to cooperate. If the customer fails to fulfil its obligations to cooperate, the delivery period shall be extended by the duration of the disruption, unless the disruption has no influence on the delay. The delivery period is met if the Software Manufacturer has dispatched the goods.
3.2.3) If a delivery period is exceeded for reasons for which the Software Manufacturer is responsible, the customer may set a reasonable grace period and may withdraw from the contract only after this period has expired without result.
3.2.4) The risk passes to the purchaser as soon as the goods are handed over by the Software Manufacturer to the parcel service, postal service or forwarding agent.
4: RETENTION OF TITLE, THIRD-PARTY PROPERTY RIGHTS
4.1) The Software Manufacturer retains title to the data carriers, software and other goods delivered until full payment of all claims existing at the time of delivery arising from the contractual relationships between the Software Manufacturer and the customer. The customer is obliged to store the products owned by the Software Manufacturer with commercial diligence and to insure them adequately.
4.2) The Software Manufacturer assumes, for the territory of Switzerland and the Federal Republic of Germany, that the software does not infringe any third-party property rights. Should a third party assert against the customer an infringement of industrial property rights with regard to the software delivered, the customer is obliged to notify the Software Manufacturer immediately. The customer shall give the Software Manufacturer the opportunity to join any legal dispute. The customer shall conduct a legal dispute concerning the question of whether an infringement of property rights exists only in consultation with the Software Manufacturer. The Software Manufacturer shall decide – with due regard to the customer's needs – on legal defence measures and in settlement negotiations. If the third party is entitled to justified claims arising from industrial property rights as a result of the contractual use of the software supplied by the Software Manufacturer, the Software Manufacturer shall, with particular regard to the customer's circumstances, have the choice of acquiring a licence or modifying the software free of charge.
4.3) Insofar as innoEnergy GmbH develops software according to the customer's designs and instructions, the customer shall indemnify the Software Manufacturer against all claims and costs arising from infringements of third-party property rights attributable to the customer's designs and instructions. Upon request by the Software Manufacturer, the customer shall pay a reasonable advance on litigation costs.
4.4) If a system delivered by innoEnergy GmbH is reported as unpaid or stolen, the IP address of this computer will be automatically transmitted to the Software Manufacturer at the next licence query.
5: CLAIMS FOR DEFECTS
5.1) If the customer does not notify innoEnergy GmbH of defects that occur without undue delay in writing or by e-mail, the claims for defects in respect of the defect not notified shall lapse.
5.2) If a defect occurs in the works or services supplied by innoEnergy GmbH, innoEnergy GmbH shall, at its option, either remedy the defect within a reasonable time or perform the complained-of service anew free of defects (collectively, subsequent performance).
5.3) If subsequent performance fails, in particular because the defect is not remedied despite attempts to rectify it, subsequent performance is unreasonably delayed or is unjustifiably refused, the customer may, at its option, withdraw from the contract or reduce the price.
5.4) The customer has no claims for defects as a result of errors caused by damage, incorrect connection or incorrect operation by the customer. Nor does the customer have any claims for defects if it has modified the delivered work or services itself or through third parties, unless it proves that the modification does not significantly impede the analysis or processing effort by the Software Manufacturer and that the defect in the software was present at the time of acceptance.
5.5) If the customer withdraws from the contract, it shall pay the Software Manufacturer a reasonable usage fee for the period up to the date of withdrawal. The usage fee is calculated on the basis of straight-line depreciation over four years.
5.6) Claims for defects become time-barred within one year from the commencement of the statutory limitation period.
6: LIMITATION OF LIABILITY
6.1) The purchaser's claims for damages or reimbursement of futile expenses are governed by this provision.
6.2) The Software Manufacturer shall be liable without limitation for damages resulting from injury to life, body or health based on a negligent breach of duty by the Software Manufacturer or an intentional or negligent breach of duty by a legal representative or vicarious agent of the Software Manufacturer.
6.3) With regard to other liability claims, the Software Manufacturer shall be liable without limitation only in the absence of a guaranteed quality and for intent and gross negligence, including that of its legal representatives and executive employees. The Software Manufacturer shall be liable for the fault of other vicarious agents only to the extent of liability for slight negligence pursuant to section 6.4 .
6.4) innoEnergy GmbH shall be liable for slight negligence only if a duty is breached whose fulfilment is of particular importance for achieving the purpose of the contract (cardinal duty, «a duty whose fulfilment makes the proper performance of the contract possible in the first place and on whose fulfilment the contracting party may regularly rely»). In the event of a negligent breach of a cardinal duty, liability is limited to CHF 5,000.00.
6.5) Liability for loss of data is limited to the typical restoration effort that would have been incurred had backup copies been made regularly and in a manner appropriate to the risk, unless one of the conditions under section 6.2 applies.
6.6) Liability under the Product Liability Act (PrHG) remains unaffected.
7: FINAL PROVISIONS
7.1 Place of Jurisdiction and Applicable Law
The registered office of innoEnergy GmbH in Weingarten (Switzerland) shall be the exclusive place of jurisdiction (Münchwilen) for all disputes, claims or disagreements
arising from or in connection with this contractual relationship, including its validity, invalidity, breach or termination. Deviating mandatory statutory places of jurisdiction are reserved.
Contracts concluded on the basis of these GTC are governed exclusively by Swiss law and the SIA standards. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
7.2. Prohibition of Assignment and Set-Off
The assignment of rights arising from contracts concluded with innoEnergy GmbH is excluded without the written consent of innoEnergy GmbH.
The settlement of claims by the customer by way of set-off is excluded.
7.3. Severability Clause
Should individual provisions of this contract be invalid or void, the validity of the remaining provisions shall not be affected thereby. The invalid or void provision shall be replaced by a permissible provision that best corresponds to the intended purpose. The same applies mutatis mutandis to any gap in the provisions.
7.4. Written Form Requirement
Where the parties have agreed on the written form, this requirement is also satisfied by e-mail.
7.5. Amendment of the GTC and the Range of Services
innoEnergy GmbH is entitled at any time to supplement or amend these General Terms and Conditions. innoEnergy GmbH is furthermore entitled at any time to change the range of services and to cease offering individual or all products or to offer them on different terms.