1.1 The Workaround (ProGlove) GmbH, with business address at Friedenstrasse 4, 81671 München (hereinafter “ProGlove”), undertakes to perform for participants of the extended warranty scheme “ProGlove CARE” (hereinafter “ProGlove CARE”), pertaining to the contractual condition and performance of the scanner of the type “Mark” (hereinafter “ProGlove Mark”) purchased as per Clause 2 and registered for ProGlove CARE, the services described in the following provisions. The warranty scheme ProGlove CARE exists in addition to all warranty claims according to mandatory statutory law, product liability claims and contractual warranty claims, and does not limit such rights.
1.2 Deviating or supplemental conditions of the End Client (as defined in Section 2.1
(a)), in particular terms and conditions of the End Client, shall not apply unless ProGlove has explicitly approved such terms and conditions in writing.
2. Entitlement to ProGlove CARE; Conclusion of Contract; Contractual Changes
2.1 ProGlove CARE services can be utilised only if the following prerequisites are cumulatively satisfied:
(a) ProGlove CARE is purchased by a client who is an entrepreneur within the meaning of Section 14 BGB (German Civil Code – Bürgerliches Gesetzbuch) and acquired the ProGlove Mark for its own use (hereinafter “End Client”) either (i) directly from ProGlove or (ii) from an authorised reseller who purchases ProGlove Marks in its own name and for its own account directly from ProGlove and resells the same (hereinafter “Partner”). The ProGlove CARE services are to be performed solely for the relevant End Client (End Client stipulation of ProGlove CARE);
(b) At the time of utilising ProGlove CARE services, the End Client must be the owner of the ProGlove Mark in respect of which the services are to be performed. No other users of the ProGlove Mark shall be entitled to utilise ProGlove CARE services (ownership stipulation of ProGlove CARE); and
(c) An order has been properly placed for ProGlove CARE in respect of the ProGlove Mark for which the ProGlove CARE services are to be performed (device stipulation of ProGlove CARE).
2.2 ProGlove CARE has to be ordered separately for each ProGlove Mark specifying the relevant serial number. In placing an order for ProGlove CARE, the End Client submits an offer to conclude a contract for ProGlove CARE in respect of the ProGlove Mark specified in the order. The ProGlove CARE contract is effective upon the declaration of acceptance issued by ProGlove in text form.
2.3 If the End Client does not order ProGlove CARE within thirty (30) days of the receipt of the respective ProGlove Mark by the End Client, ProGlove shall be entitled prior to accepting the order for ProGlove CARE to inspect the ProGlove Mark at the expense of the End Client, which shall not exceed an amount of EUR 180,00. The purpose of the inspection is to assess the condition of the relevant ProGlove Mark and verify eligibility for the participation in the ProGlove CARE scheme.
2.4 The ProGlove CARE contract shall be effective exclusively between ProGlove and the End Client. Partners are not entitled to represent ProGlove in legal transactions. ProGlove is entitled, however, at its sole discretion, to engage Partners to perform ProGlove CARE services, including maintenance services.
2.5 Subsequent amendments to the conditions of ProGlove CARE (e.g. revision of scope of performance) can be agreed upon by both contracting parties in a separate written agreement and shall apply from the date of the amendment for the (remaining) Term agreed upon in the ProGlove CARE contract as per Clauses 8.1 and 8.2. However, at all times, ProGlove reserves the right, before concluding such an agreement to perform an internal plausibility check in respect of the End Client and, if appropriate, to withhold its consent to any Contractual Change without stating reasons.
2.6 In order to respond to market changes and also to be able to offer existing customers new products, ProGlove further reserves the right to unilaterally revise the conditions governing the ProGlove CARE (hereinafter “Contractual Change”). ProGlove shall give the End Client sufficient advance notice of a Contractual Change – at least six (6) weeks before the effective date of such Contractual Change – in text form. A Contractual Change cannot materially alter the conditions to the detriment of the End Client; in particular it cannot materially increase the amount of the remuneration. The parties concur that an increase of up to five (5) percent within one year of the preceding price increase, or of up to ten (10) percent in the three consecutive years since the preceding price increase, is not to be deemed a material alteration of conditions if the price increase corresponds either to the increase in costs incurred by ProGlove, also giving consideration to any cost savings achieved, in providing the ProGlove CARE services, in particular the necessary costs for maintaining, servicing and further developing the technical and human resources used to perform the services and the necessary cost of licensing third-party works, or to the increase in market prices. If a Contractual Change materially alters the conditions to the detriment of the End Client, the End Client has the right to exceptionally terminate the contract in writing by serving notice of four (4) weeks from receipt of the change notice. The End Client must present the notice of exceptional termination to ProGlove in writing within four (4) weeks of receiving notice of the material Contractual Change, otherwise the Contractual Change will take effect as announced by ProGlove, from the relevant communicated date. The Contractual Change shall take effect accordingly from the announced effective date. If the End Client rejects the material Contractual Change and exercises its right of termination for good cause, it shall be obliged to cease utilising ProGlove CARE services once the contract is terminated.
2.7 During the duration of the Term as defined in Clauses 8.1 and 8.2 ProGlove is further entitled to terminate all ProGlove CARE services for certain ProGlove Marks if it can no longer perform the agreed ProGlove CARE services for such products due to the fact that the necessary replacement parts have been discontinued by the respective manufacturer. In this case the End Client has to be reimbursed for any advance payments paid in advance for the respective ProGlove Marks insofar as the advance payments were made in respect of periods in which ProGlove CARE services will no longer be performed due to the termination.
3. Performance Scope
3.1 Within the framework of this Clause 3, the ProGlove CARE services encompass the following scope of performance for End Clients who are owners of ProGlove Marks in respect of which ProGlove CARE has been purchased:
(a) ProGlove shall provide the following help desk support services:
− Telephone service hotline with live support provided by skilled device specialists on weekdays (Mondays to Fridays, excepting national and local public holidays), from 9 am to 5 pm (local time at the registered office of ProGlove, Munich, Germany), and
− E-mail support provided by skilled device specialists on weekdays (Mondays to Fridays, excepting national and local public holidays), from 9 am to 5 pm (local time at the registered office of ProGlove, Munich, Germany).
(b) ProGlove shall rectify a functional failure and/or impairment of the ProGlove Mark (hereinafter “malfunctions”) arising from
− a device fault (technical failure) attributable to the manufacturer, or
− normal wear and tear (e.g. abrasion) and other damage occurring while making contractual and appropriate use of the ProGlove Mark,
by replacement (Ersatzlieferung) of a quality-assured, refurbished and repaired (hereinafter “Refurbished”) ProGlove Mark.
Malfunctions occurring within the Term of the ProGlove CARE contract as defined in Clauses 8.1 and 8.2 shall be rectified by transferring the device and transferring the title (hereinafter “Replacement”) of an equivalent new or Refurbished ProGlove Mark (hereinafter “Replacement Device”). The Replacement Device shall be configured with the standard configuration determined by ProGlove, offer at least equivalent functionality and be in a similar condition to the replaced device. The title of ownership of the device replaced in connection with the rectification of a malfunction shall transfer to ProGlove. The cost of material, labour and shipping costs for returning the ProGlove Mark to the End Client shall be borne by ProGlove within the EU. The cost of sending the defective device from the End Client to ProGlove shall be borne by the End Client.
(c) Replacements are available only for the ProGlove Mark. The other devices belonging to the ProGlove system, such as the access point and charging station (“Non-ProGlove CARE Products”), are not covered by the ProGlove CARE scheme. The End Client is not entitled to receive ProGlove CARE services for NonProGlove CARE Products; outside the scope of the contractual warranty agreed upon between the End Client and ProGlove, the mandatory statutory provisions concerning warranty law, and the German Product Liability Act (Produkthaftungsgesetz), Non-ProGlove CARE Products will be repaired at best as gesture of goodwill and in the sole discretion of ProGlove.
(d) If the ProGlove Mark is repaired outside the scope of the ProGlove CARE services, ProGlove will charge the End Client for the Replacement Device as per the current price list as revised from time to time.
(e) ProGlove CARE is limited to the geographical territory of the European Union, Switzerland and the UK, whereas the place in which the respective ProGlove Mark End Client has its registered office shall determine whether the respective ProGlove Mark falls within the territorial scope.
3.2 The following services are not included in the scope of performance of the ProGlove CARE services:
(a) repair and/or maintenance of software, including without limitation updating the ProGlove Mark with the most recent software release;
(b) repair and/or maintenance of third-party CDC drivers that do not form part of the ProGlove Mark;
(c) rectification of cosmetic defects not affecting the functioning or stability of the ProGlove Mark;
(d) repair or replacement of a ProGlove Mark damaged by force majeure (in other words by exceptional events or circumstances beyond the control of the parties, such as armed conflict, insurrection, criminal acts or natural disasters, including storms, flooding, earthquakes, volcanic eruptions etc.);
(e) repair and/or replacement of consumables, in particular of the “Longlife” fingerless overgloves and standard gloves;
(f) the performance of ProGlove CARE services for a Non-ProGlove CARE product or any other products not expressly covered by the ProGlove CARE scheme; and
(g) pre-configuration of the Replacement Device to match the End Client’s configuration. The End Client is responsible for configuring any Replacement Device according to its needs.
3.3 ProGlove shall not be obliged to perform the agreed ProGlove CARE services if the malfunction of the ProGlove Mark is or was according to ProGlove’s assessment, that ProGlove exercised freely at its discretion,
(a) not reproducible for ProGlove;
(b) based on an application problem of the ProGlove Mark attributable to the ProGlove Mark (i) having been processed, modified or combined wholly or partially with other software products by the End Client or third parties without the prior written consent of ProGlove, or (ii) having been used in a different hardware environment or in connection with a different software environment than intended at the time the ProGlove Mark was supplied;
(c) based on system interference between the ProGlove product and other hardware and/or software products due to, or related to, the place of use, unless the client provides evidence that such interference lies within the sphere of influence and responsibility of ProGlove;
(d) caused by a repair or modification of the ProGlove Mark (attempted) by the client or unauthorised third parties;
(e) based on the ProGlove Mark having been used not in compliance with the relevant operating instructions and/or manuals;
(f) based on damage to the ProGlove Mark caused by wilful or negligent acts by the End Client or based on damages that lie otherwise within the sphere of responsibility of the End Client, or based on misuse of the ProGlove Mark; or
(g) caused by the use of unsuitable tools or accessories.
3.4 These ProGlove CARE services shall be granted to the End Client in addition to the warranty and product liability rights agreed in the purchase agreement with the seller of the ProGlove Mark, as well as the statutory warranty and rights under the Product Liability Act. The End Client can therefore in addition to the claims pursuant to the ProGlove Care claim contractual or statutory warranty claims against the relevant seller.
4. Performance of ProGlove CARE services
4.1 The ProGlove CARE services to be performed by ProGlove shall constitute a service contract within the meaning of Section 611 BGB and, save as otherwise provided in this ProGlove CARE contract, be subject to the statutory provisions concerning service contracts (Dienstvertragsrecht). It is the parties intend that, by concluding the ProGlove CARE contract, they explicitly do not constitute a contract to produce a work (Werkvertrag).
4.2 The ProGlove CARE services are to be performed, at the sole discretion of ProGlove, (i) by ProGlove (Munich, Germany) itself and/or (ii) by a local support establishment designated by ProGlove and/or an authorised ProGlove Partner (“Support Partners”). The ProGlove CARE services can be performed by Support Partners without the consent of the End Client. The End Client hereby consents to ProGlove passing to the relevant Support Partner all data relating to the End Client and needed for the purpose of performing the ProGlove CARE services.
4.3 ProGlove or a Support Partner shall respond within 24 hours to a support request of the End Client duly submitted to the competent support facility. In addition, ProGlove or a Support Partner shall maintain an appropriate inventory of Replacement Devices offering equivalent functionality in order to supply the End Client with a Replacement Device within a period that is reasonable for the End Client. ProGlove shall endeavour to perform the ProGlove CARE services within the envisaged time frames (“Lead Times”). In view of the diverse complexity of requests, however, stated Lead Times are only guideline valus and therefore non-binding.
5. Obligations of the End Client
5.1 The End Client is obliged to take appropriate precautions in order to prevent losses or damage to the ProGlove Mark. The End Client is obliged to test the ProGlove Mark using self-diagnostic programs and to solve error messages as instructed by telephone. An entitlement to return the ProGlove Mark and have a Replacement Device supplied by ProGlove shall exist only if the fault cannot be rectified remotely.
5.2 The End Client must provide ProGlove with (i) a station for remote testing of the ProGlove systems, and (ii) qualified personnel capable of working together with ProGlove to produce a remote diagnosis.
5.3 The End Client shall notify ProGlove of malfunctions of the respective ProGlove Mark in respect of which it wishes to utilise ProGlove CARE services without undue delay in text form upon their occurrence. In this context, the End Client must, within reasonable limits, localise the fault and/or application problem and describe the fault accurately in writing.
5.4 Before sending ProGlove Marks to ProGlove, the End Client is obliged to announce the return of a ProGlove Mark and/or any other accessories (e.g. cables supplied by third parties) in connection with the intended utilisation of the services available granted under the ProGlove CARE scheme, together with the return merchandise authorisation number (hereinafter “RMA number”) allocated and reported by ProGlove to the End Client.
5.5 The End Client is further obliged to pack the ProGlove Mark appropriately for the return, and to return the ProGlove Mark together with a completed return merchandise authorisation document (hereinafter “RMAD”). Upon the instruction of ProGlove, the End Client is obliged to produce the RMAD with the RMA number and send both together with the End Client’s delivery and invoice address. Should the delivery and/or invoice address differ, this is to be noted in the RMAD. The RMAD must also contain a detailed description of the malfunction, which is to be entered by the End Client upon the instruction of ProGlove. If the End Client sends any accessories in addition to the ProGlove Mark, these are to be stated separately in the RMAD. ProGlove shall not accept any liability for accessories sent together with a ProGlove Mark without being indicated in the RMAD, and shall return such accessories to the End Client at the End Client’s expense.
5.6 If ProGlove does not receive the defective ProGlove Mark within 30 days of sending the RMAD, and has already sent the End Client a Replacement Device, it shall be entitled to charge the End Client for the supplied Replacement Device as per the current price list as revised from time to time.
5.7 In the event of recurring malfunctions, exceeding the normal boundaries based on experience with regard to the ProGlove Mark (or Replacement Device) registered with the ProGlove CARE scheme, the End Client shall be obliged, if it wishes to continue utilising the ProGlove CARE services, to grant ProGlove access to its business premises and/or the locations where the ProGlove Mark is in service, in order to allow ProGlove to evaluate how the ProGlove Mark is being used within the End Client’s business. ProGlove is entitled to recommend accessories and solutions to the End Client in order to reduce the risk of any future malfunctions. The End Client shall endeavour, within reasonable limits, to give appropriate consideration to the recommendations of ProGlove. If ProGlove determines according to its reasonably exercised discretion that the recurring malfunctions of the ProGlove Mark are based on a non-contractual or improper use, and if the End Client does not implement the solutions recommended by ProGlove to prevent the malfunctions, ProGlove can terminate the ProGlove CARE for good cause for the respective ProGlove Marks. In case of an termination for good cause by ProGlove, Sentence 2 of Clause 2.8 shall apply mutatis mutandis.
5.8 The proper and timely compliance of the End Client’s obligations stated in this clause constitutes an obligation duty (Obliegenheit) and a material precondition of the End Client’s utilisation of the ProGlove CARE services. For this reason, the End Client cannot assert any claims for improper or untimely performance of the ProGlove CARE services if it does not provide evidence that it has complied with its obligations timely and properly, or that the improper or late performance of the ProGlove CARE services does not rely on the late or improper discharge of its obligations.
6. Restriction of Liability
ProGlove is only liable with regard to the present ProGlove CARE contract pursuant to the following provisions:
6.1 ProGlove is liable without restriction for loss or damage caused by intent or gross negligence by ProGlove, its legal representatives or officers, and for losses caused by intent on the part of other vicarious agents; in case of gross fault on the part of other vicarious agents, liability shall be determined pursuant to the provisions concerning slight negligence as set forth below in Clause 6.5.
6.2 ProGlove is liable without restriction for loss or damage resulting from death, physical injury or health impairment caused by ProGlove, its legal representatives or vicarious agents.
6.3 ProGlove is liable for loss or damage arising from the absence of assured characteristics up to the amount encompassed by the purpose of the assurance and which was identifiable by ProGlove at the time of giving the assurance.
6.4 ProGlove is liable for product liability losses and damage pursuant to the provisions of the German Product Liability Act.
6.5 ProGlove is liable for loss and damage arising from the breach of material obligations by ProGlove, its legal representatives or vicarious agents; material obligations are the main obligations that form the basis of the contract, were crucial for the conclusion of the contract, and upon whose fulfilment the End Client can reasonably rely (“Material Obligations” – Kardinalpflichten). If ProGlove has breached these Material Obligations through slight negligence, its liability shall be limited to the amount foreseeable by ProGlove at the time of the performance of the respective service.
6.6 In principle, any further liability of ProGlove is excluded.
6.7 The provisions of this Clause 6 shall apply to all compensation claims irrespective of the legal ground, including unlawful acts.
7. Fees and Payments
7.1 The fees for participation in the ProGlove CARE scheme shall be governed by the price lists applicable at the time the ProGlove Care contract is concluded. Any subsequent additions to the contract shall be charged, save as otherwise provided in the relevant supplement, according to the price list applicable at the time of the addition.
7.2 The total fees for the basic Term agreed in the ProGlove CARE contract (pursuant to Clauses 8.1 and 8.2) shall become due for the relevant ProGlove Mark in each case upon conclusion of the contract, and are payable in advance.
7.3 All other fees charged to the End Client are to be settled within 30 days of the invoice date.
7.4 All fees are stated exclusive of both the applicable statutory amount of value-added tax as revised from time to time and all other taxes and charges. These costs, if and to the extent incurred, are to be invoiced to the End Client.
7.5 All payments are to be made in Euros, even if the invoice indicates a different currency. The End Client shall bear any and all currency risk.
7.6 In case of a delay in payment by the End Client, ProGlove shall reserve the right to suspend or, if appropriate, terminate the performance of ProGlove CARE services. The statutory rights of ProGlove in case of a delay in payment shall remain unaffected hereby.
7.7 All services requested by the End Client that are not included in the scope of performance of the requested ProGlove CARE services, are to be performed on the basis of a cost estimate produced in advance by ProGlove and approved subsequently by the End Client, and shall be subject to the provisions of the present Clause 7.
7.8 The End Client can offset remuneration claims of ProGlove only against uncontested or non-appealable (rechtskräftigen) claims, and/or assert a right of retention, and/or plead the defence of non-performance of the contract (Einrede des nicht erfüllten Vertrages).
8. Start, Term and Termination of Contract
8.1 As regards timing, the ProGlove CARE services are to be made available to the End Client – subject to the proper conclusion of a contract pursuant to Clause 2 – from the date of supply of the respective ProGlove Mark (hereinafter “Delivery Date”) and provided for the duration of the Term agreed in the ProGlove CARE contract (hereinafter “Term”). The ProGlove CARE contractual services shall end upon expiry of the agreed Term; in particular, the Term shall not be extended due to the supply of a Replacement Device.
8.2 Save as otherwise agreed between the parties, the full Term of the contract shall be three (3) years starting from the Delivery Date (with retroactive effect if applicable).
8.3 The right of each party to terminate for good cause shall remain unaffected. A good cause shall exist in particular if the other party culpably infringes material contractual obligations and does not remedy the infringement, despite a prior written caution, within thirty (30) days of receiving such caution.
8.4 Any termination declaration requires text form to be valid.
9.1 The parties undertake to treat in confidence and use only for contractually agreed purposes all confidential information of which they gain knowledge in connection with this contract. Confidential information within the meaning of the this clause shall comprise information, documents, particulars and data designated as confidential or to be regarded as confidential in view of their nature. The parties undertake to grant access to confidential information only to employees entrusted with the performance of services in the context of the ProGlove CARE scheme. Each party is obliged at the request of the other party to have its employees sign a corresponding confidentiality undertaking and to present the onfidentiality undertaking to the other party. Neither party shall seek to register intellectual property rights based on confidential information of the other party.
9.2 Clause 9.1 does not apply to information that
(a) was already known to the party subject to the confidentiality undertaking before receiving same;
(b) is or becomes generally known without fault on the part of the party subject to the confidentiality undertaking;
(c) is disclosed to the party subject to the confidentiality undertaking by a person other than the other party without such person infringing contractual or statutory provisions when obtaining or disclosing the information;
(d) has been conceived independently by the party subject to the confidentiality undertaking;
(e) has to be disclosed pursuant to statutory regulations; or
(f) ProGlove is allowed to disclose due to an exemption from the confidentiality undertaking granted by the party whose confidential information is supposed to be protected.
10.1 The ProGlove CARE contract and all rights and obligations arising from the ProGlove CARE contract shall be governed by German law with exclusion of any referrals to other legal systems. The exclusive venue for disputes arising from or in connection with the ProGlove CARE contract shall be the Munich I District Court (Landgericht München I). ProGlove is entitled, however, at its discretion to bring an action against the End Client before a competent court of the place of performance or of the place in which ProGlove has its registered office is situated.
10.2 The End Client is not entitled to assign its rights and obligations arising from the the ProGlove CARE contract without the prior written consent of ProGlove.
10.3 If individual provisions of the ProGlove CARE contract are or become invalid or impracticable, or if the ProGlove CARE contract contains gaps, the validity of the other provisions of the ProGlove CARE contract shall remain unaffected thereby. In place of the invalid or impracticable provisions the parties shall agree upon a valid provision which they would likely have agreed upon, had they been aware of the invalidity, impracticability or omission of the respective provisions at the time the ProGlove CARE contract was concluded. If a provision is or becomes invalid due to the scope of performance agreed upon therein, the scope of performance agreed upon in the provision is to be modified to reflect the legally permissible measure.
10.4 Changes and/or additions to the ProGlove CARE contract shall be invalid save as done in writing. This shall also apply to a revision of this written form requirement. Declarations made by e-mail shall not satisfy the written form requirement.
10.5 This ProGlove CARE contract shall exclusively govern the legal relationship between the End Client and ProGlove with regard to the ProGlove CARE contract; no written or oral supplements have been agreed upon.