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General terms and conditions Hear’nSay

  1. General

All goods and services offered by Hear’nSay are provided exclusively on the basis of the following terms and conditions.
    2. Even in the event of delivery of the Hear’nSay service, conflicting terms and conditions of the customer or user will not become part of the contract, even without explicit counter-notice.
    3. Deviations from these General Terms and Conditions and any contracts that have already been agreed are only effective if confirmed in writing by Hear’nSay.
  2. Offer and conclusion of contract
    1. Hear’nSay’s offers are not binding – in particular in respect of the prices, quantity, delivery deadline, supply possibilities and ancillary services.
    2. The scope of services to be rendered by Hear’nSay shall be determined only by the written contracts.
    3. Hear’nSay reserves the right of derogating from the offer documents or from the acknowledgement of an order by consideration of obligatory and derogations caused by legal and technical standards.
  3. Installation, training and support
    1. Neither installation by Hear’nSay, nor the training of the customer or of its staff is included in the scope of delivery of the software supplied. The services will only be supplied in accordance with an appropriate agreement and will be billed for additionally.
    2. Insofar as Hear’nSay is to provide installation, training or consultancy services then the customer must commit to providing the required on-site prerequisites, in particular the rooms, infrastructure, documents and staff required. If the customer does not fulfil its collaboration obligations as per clause 1 then the implementation periods of Hear’nSay as contractually agreed upon will be correspondingly extended. Hear’nSay can invoice for the additional expenditure incurred and, in particular, for the extended provision of its own members of staff or for the use of its own materials. Claims of Hear’nSay according to § 843 BGB remain unaffected.
    3. Information shall be confirmed in writing.
  4. Inspection, notification and rejection; Scope of services
    1. The customer shall without delay check the delivered software or software parts and each other goods after receiving and give written notification of apparent defects to Hear’nSay immediately.
    2. Hear’nSay is entitled to use the assistance of third parties for the fulfilment of the services owed by it.
    3. Hear’nSay is entitled, to a reasonable extent, to make partial deliveries both of goods and services.
    4. Products supplied for test or demonstration purposes (hardware, software, data carriers, documents etc.) remain the property of Hear’nSay. Hear’nSay reserves the right to configure software in such a way that the programs are no longer completely implementable after the expiry of agreed upon test periods. The customer can derive no claims of any kind from this.
  5. Delivery deadlines
    1. Delivery deadlines quoted by Hear’nSay are not binding. Should it be the case that Hear’nSay exceeds the delivery deadline by more than 4 weeks then the customer is entitled to set a period of grace for the supplies.
    2. Changes in the order lead to the suspension of deadlines and delivery periods agreed upon insofar as nothing else has been agreed upon.
    3. Delivery and service periods will be appropriately extended in cases of force majeure and of all other obstacles which may be of substantial influence on supplies and services and which are beyond the control of Hear’nSay.
  6. Prices
    1. Prices are understood to be net, exclusive of packaging and freight costs and plus currently valid statutory VAT. The prices charged are the prices stated in our binding price list, plus the appropriate local added taxes. Deliveries and services for which no fixed prices have been agreed will be charged for accordance with the added list price applicable on the date of delivery.
    2. Services and product extension costs shall be charged according to the price lists each valid on the date of acceptance of the contract, unless a fixed price has otherwise been agreed.
    3. Hear’nSay reserves the right to suitably increase the prices, if after the conclusion of a contract costs increase, such as by means of price increases of the suppliers or if currency fluctuations occur. Relevant information will be provided to customers by Hear’nSay on request.
  7. Payment
    1. Unless otherwise agreed upon, deliveries of goods are to be paid for net within 10 days of receipt of invoice and without any deductions. In the event of of a delayed payment, Hear’nSay is entitled to calculate a default interest of 8% above the currently valid basic interest rate set by the European Central bank, insofar as the customer has not demonstrated a lower level of damage or Hear’nSay a higher level.
    2. The customer may only balance against undisputed or legally effective accounts receivable and/or credit these against accounts receivable by Hear’nSay. The customer may only exercise rights of retention if it has been ascertained that its counterclaim is undisputed or is legally valid. In the case of on-going business relationships, each individual order shall be deemed to be a separate contractual relationship.
    3. If the customer simultaneously owes Hear’nSay several payments – and insofar as the customer has not made any repayment arrangement – the debt due is to repaid first.
  8. Hear’nSay usage policy
    1. Signing up to one of our plans means you should be aware of the allowances we set on how many voiceletters you can send.
    2. What are the Hear’nSay usage allowances?
    3. Different packages have different usage allowances to suit different types of customer usage, you’ll have a usage allowance that runs from the 1st of the month to the end of the month.
      Package Monthly Usage Allowance
      Free 100 credits
      Standard 1000 credits
      Professional 1000 credits
    4. Each credit is spent to send a single voiceletter to a single recipient. So, for example a free user can send 1 voiceletter to 100 recipients or 100 voiceletters to 100 recipients or any combination in-between.
  9. If the customer is in default of acceptance. If a customer fails to accept the ordered goods, after granting an acceptable respite of maximum 14 days, Hear’nSay shall be entitled to withdraw from the contract and to claim compensation for damage. The compensation to be paid by the customer is 30 % of the purchase price, plus according value added tax, unless we prove a higher or the customer proves a lower damage.
  10. Transfer of risk, acceptance of services, liability for material defects, later correction of services
    1. Unless otherwise agreed in writing, all deliveries shall be made at the customer’s expense and risk.
    2. Products installed by Hear’nSay as per order are to be tested by the customer, together with a Hear’nSay employee, without delay. If the products function, to a substantial degree, as per the order then the customer will immediately declare acceptance in writing. If the customer refuses acceptance then it must notify Hear’nSay without delay, and at the latest within 10 working days after installation, quoting concrete defects with a concrete description in a defect protocol. If neither a declaration of acceptance nor notification of defects is received by Hear’nSay in the period named, then the work is deemed to have been accepted. The customer may not refuse acceptance on account of insubstantial defects.
    3. Hear’nSay guarantees that the contractual products are not afflicted with significant defects and are suitable for the use as detailed in the contract or for their regular use. However, customer is aware that, according to the nature of technology, it is not possible to exclude all errors in the software under all applications. That is why no statements regarding compatibility are made.
    4. Claims for quality defects do not exist in case of only insubstantial deviations from the agreed quality, in case of only insubstantial deviation from the usage and/or in case of consequences due to modifications accomplished by the customer or third parties, installed improperly, maintained, repaired, or is exposed to environmental conditions which do not correspond to the installation requirements, except if the customer proves, that these conditions are not causal for the criticized defects. The liability for material defects shall cease to apply if serial numbers, model indications or similar characteristic marks have been removed or made unreadable. The liability for material defects shall only be valid if the cause of the defect existed at the time of the transfer of risk.
      1. Hear’nSay guarantees that the software complies with the specifications set out in the relevant program documentation and that it will be delivered on error-free storage devices. All discernible defects are to be notified by the customer to Hear’nSay in writing immediately after discovery.
      2. Hear’nSay reserves the right to remedy defects at its option by repairing the defects, by providing a replacement, or by modifying the services rendered. Should the correction of faults by Hear’nSay result in a change to the service provided, then Hear’nSay will not substantially change the scope of service originally agreed with the customer. The customer will support Hear’nSay with correcting any faults to the extent required. Any replaced parts or software return to the ownership of Hear’nSay.
      3. Only in the event of the final failure of the remedial measures or replacement delivery, the Purchaser may, at its option, demand a reduction in the price or cancellation of the contract.
      4. In the case of an insignificant diminution in the value or suitability for use of the service, no claims shall exist.
    5. Claims for material defects are limited to 24 months from the date of the delivery of software or installation at the customer’s location. Claims for material defects are only transferable with the agreement of Hear’nSay.
    6. The customer is not entitled to remedy defects directly or have them remedied by third parties, and to demand reimbursement of the expenses incurred in doing so.
    7. In the event of a culpable violation of the obligations to provide advice or training or other services, the Contractor shall initially be entitled to make subsequent improvements free of charge.
    8. If the investigation of a notice of defect establishes that the liability for defects in materials on the part of Hear’nSay did not exist, the costs of investigation and repair shall each be charged by Hear’nSay in accordance with the customer service prices and terms of Hear’nSay in effect at that time.
  11. Retention of title
    1. Hear’nSay retains the retention of title for the delivered goods until full payment of the purchase price. If the customer is a businessman, then the above-mentioned reservations are valid up until the complete payment of all accounts receivable incurred and being incurred within the business relationship. This is also valid if individual or entire accounts receivable by Hear’nSay are included in a current invoice and the total due is calculated and acknowledged.
    2. The customer must treat the goods subject to retention of title with the due diligence of a good businessman on behalf of Hear’nSay and insure them, at its own cost, against fire, water, theft and other risks. The customer transfers his or her corresponding claims from insurance contracts to Hear’nSay with the conclusion of this agreement. Hear’nSay accepts the transfer.
    3. The exercise of rights relating to the retention of title or a demand of relinquishment do not constitute withdrawal from the contract.
    4. The retention of title is released on requirement of the customer if the protection value exceeds the demands to be protected about more than 10%.
  12. Extent of granting of rights
 Hear’nSay retains the copyrights and commercial protection rights, as well as the exploitation rights to the software supplied. The remarks on copyright protection on the program carrier or on the packaging, also of third parties, are to be complied with. Insofar as nothing else has been agreed upon, the customer acquires a simple right of usage to the software. Furthermore, the customer’s right of usage is regulated according to the Terms of Use for Hear’nSay software for the products in question.
  13. Liability
    1. Hear’nSay is only liable without restriction for intent and gross negligence on the part of Hear’nSay, as well as in the case of the absence of explicitly assured properties or features.
    2. In all other cases of culpable infringement of material contractual obligations, Hear’nSay shall be liable only for the damage typical, and therefore forseable, in such contracts, regardless of the legal grounds.
    3. Hear’nSay shall not be liable in the case of the negligent of infringement of minor contractual obligations.
    4. Hear’nSay is not liable for damages insofar as the customer would have been able to prevent their occurrence via measures to be reasonably expected of it, in particular, any associated with software and data backups.
    5. Any liability – except in cases of intent or gross negligence – is limited to the maximum amount covered by the business liability insurance taken out by Hear’nSay.
    6. The liability provisions in this section 12 also apply for the benefit of the directors, employees and other agents of Hear’nSay.
    7. This shall not prejudice the provisions of the Product Liability Act.
    8. Claims for the liability for damages arising from loss of production, loss of utilization or loss of profit are excluded under all circumstances.
  14. Authorisation for the use of customer data The customer acknowledges and agrees that Hear’nSay has their permission to process, store and analyse the data obtained in connection with the business relationship between them and Hear’nSay, in accordance with the purpose of the Data Protection Act.
  15. Final provisions
    1. These terms remain binding in their remaining parts, even in cases of doubt, also when one or several of the terms is, are legally ineffective or or become so. Should terms be, or become, wholly or partially ineffective then a term(s) will replace it/them, which most closely resemble(s) the commercial intent of the ineffective term(s).
    2. The law of the Federal Republic of Germany is exclusively applicable, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods, from 11.04.1980.
    3. Place of fulfilment for all deliveries and services of Hear’nSay shall be St. Julians, Malta.
    4. If the customer is a merchant in accordance with the meaning of the German Commercial Code (Handelsgesetzbuch) or has their registered office abroad, then Malta shall be the exclusive legal venue for all disputes arising directly or indirectly from this contractual relationship. However, Hear’nSay has the right to take legal action against the customer in any other legal place of jurisdiction.