1.1 Inclusion clause vis-à-vis consumers (Section 13 BGB)

2.1 Conclusion and content of the contract

2.1.1 Formation of the contract

(1) Unless otherwise stated, TIME for kids Informationstechnologien GmbH considers itself bound to the product specifications, services and prices stated in its offers for a period of 30 days, calculated from the date of the offer.

(2) The customer is bound to a contract application for two weeks.

(3) Silence on the part of TIME for kids Informationstechnologien GmbH in response to an inquiry or a contract application from the customer does not constitute acceptance. A contract is only concluded when TIME for kids Informationstechnologien GmbH confirms it in writing to the customer or when the customer accepts an offer from TIME for kids Informationstechnologien GmbH.

2.1.2 Validity of the GTC of TIME for kids Informationstechnologien GmbH

The general terms and conditions of TIME for kids Informationstechnologien GmbH apply within the framework of the inclusion agreement concluded with the customer, unless deviating individual agreements have been made for certain contractual points.

2.1.3 Further agreements before or after conclusion of the contract

(1) Ancillary agreements, assurances and other agreements made before or when a written contract application is submitted or before or when a written contract is concluded must be made in writing in order to be effective and to avoid any ambiguities regarding the content of the contract.

(2) All amendments and additions to the concluded contract must be made in writing in order to be effective, so that ambiguities regarding amended or supplemented contractual content are avoided. Written confirmation of changes or additions may only be made by authorized representatives of TIME for kids Informationstechnologien GmbH.

(3) The written contract represents the complete agreement on the performance obligations of TIME for kids Informationstechnologien GmbH.

2.1.4 Involvement of third parties in the conclusion of the contract

(1) In the case of legal transactions in which a consumer is not involved, details in a purchase contract for financing (e.g. leasing) are merely terms of payment and do not affect the validity of the underlying contract, in particular a purchase contract.

(2) If a sales partner of TIME for kids Informationstechnologien GmbH has contributed to an order, TIME for kids Informationstechnologien GmbH does not recognize objections of the customer which the customer derives from an additional contractual relationship with the sales partner.

2.2 Implementation of the contract

2.2.1 Terms of delivery and scope of services

(1) If TIME for kids Informationstechnologien GmbH supplies products and services for schools, children’s and youth facilities as well as guardians at home in the families, the buyer must provide the address of the users when ordering, but at the latest on request. This applies in particular to school authorities, media centers, municipal data centers and commercial enterprises that market products and services for the aforementioned addressees.

(2) TIME for kids Informationstechnologien GmbH reserves the right to withdraw from the contract if there is no possibility of delivery. There is no possibility of delivery if the goods sold cannot be procured or can only be procured at a significantly higher price despite reasonable efforts. TIME for kids Informationstechnologien GmbH must inform the customer immediately of the withdrawal from the contract and the reason for withdrawal.

(3) A separate agreement will be made between TIME for kids Informationstechnologien GmbH and the customer regarding the delivery time.

(4) Subsequent requests by the customer for changes or additions to the contractual service content shall extend the agreed delivery time to a reasonable extent.

(5) A reasonable extension of the delivery period shall also apply in the event of a) the existence of unforeseen events beyond the control of TIME for kids Informationstechnologien GmbH, such as force majeure, export and import bans, or b) delays or failures in the delivery of contractual parts to TIME for kids Informationstechnologien GmbH, c) Strike or lockout at TIME for kids Informationstechnologien GmbH. In the cases a) until c) the customer shall be at liberty to withdraw from the contract after setting a reasonable deadline for performance and in the event of its fruitless expiry. The customer is not entitled to claim damages unless TIME for kids Informationstechnologien GmbH is in breach of duty.

(6) The provisions in (5) a) to c) apply accordingly if the circumstances mentioned there occur at a supplier or sub-supplier of TIME for kids Informationstechnologien GmbH.

(7) If the impediment to performance is not only temporary and not the fault of TIME for kids Informationstechnologien GmbH, TIME for kids Informationstechnologien GmbH is entitled to withdraw from the contract. In this case, the customer shall have no claims in connection with the withdrawal from the contract against
TIME for kids Informationstechnologien GmbH.

(8) If the buyer exceeds his credit limit through his call-off, TIME for kids Informationstechnologien GmbH is released from the obligation to perform. However, if the credit limit is exceeded, the customer is offered the option of purchasing goods against cash payment.

(9) TIME for kids Informationstechnologien GmbH may make design and form changes to the subject matter of the contract, insofar as these changes are not fundamental and the usual or contractual purpose is at most insignificantly restricted by these changes. User documentation, e.g. for software, is deemed to be a description of the service to be provided by TIME for kids Informationstechnologien GmbH; TIME for kids Informationstechnologien GmbH reserves the right to make deviations or changes.

2.2.2 Retention of title

(1) TIME for kids Informationstechnologien GmbH retains title to the delivered goods until all claims that TIME for kids Informationstechnologien GmbH has against the customer now or in connection with the delivered goods in the future have been settled.

(2) If the customer is a retailer, the following provision, which supplements the previous clause, applies: The customer is entitled to resell the items delivered by TIME for kids Informationstechnologien GmbH under the described retention of title in the ordinary course of business. Already at the time of the conclusion of the contract with TIME for kids Informationstechnologien GmbH, the customer assigns his claims from a resale of the goods to TIME for kids Informationstechnologien GmbH. The customer is authorized to collect this claim against his customer himself.
TIME for kids Informationstechnologien GmbH reserves the right to notify the purchaser of the goods of the assignment and to collect the claim itself if the customer does not meet his payment obligations. If the customer defaults on his payment obligation, he is obliged to provide the necessary data at the request of TIME for kids Informationstechnologien GmbH, in particular the name, address, telephone number of the buyer, the goods sold to him, so that TIME for kids Informationstechnologien GmbH can notify the buyer of the assignment of the claim and collect it itself. In the event of seizures or other impairments of the reserved property or the assigned payment claim by third parties, the customer is obliged to immediately point out the reservation of title and the ownership of TIME for kids Informationstechnologien GmbH as well as the assignment of the claim. In addition, the customer is obliged to inform TIME for kids Informationstechnologien GmbH immediately by telephone, stating the facts of the case and, if requested, to inform TIME for kids Informationstechnologien GmbH in writing. The customer is also obliged to inform TIME for kids Informationstechnologien GmbH of the name of the third party or parties who are pursuing a seizure of property or claims or causing other impairments in such a way that TIME for kids Informationstechnologien GmbH is able to protect its legal interests vis-à-vis the third party.

2.2.3 Payment obligation of the customer

(1) If installation, assembly and equipment are required to make the goods supplied by TIME for kids Informationstechnologien GmbH ready for operation, TIME for kids Informationstechnologien GmbH will invoice these services separately, unless the parties have expressly agreed otherwise. The price lists of TIME for kids Informationstechnologien GmbH valid at the time of the service order are decisive for the amount of the costs. All support services offered by TIME for kids Informationstechnologien GmbH and which the customer wishes to make use of (e.g. installation, demonstration of operational readiness, instruction, training or consulting) shall be remunerated separately on a time and material basis. The hourly rates, travel and other additional costs are based on the current price list of TIME for kids Informationstechnologien GmbH.

(2) Price increases and increases in the statutory value added tax shall be borne by the customer if the deliveries or services are provided later than five months after conclusion of the contract as agreed. The same applies if the delivery or service takes place more than five months after conclusion of the contract for reasons for which the customer is responsible. If these time requirements are not met, the customer is entitled to cancel the contract within 14 days of receiving notification of the price increase. The receipt of the customer’s declaration of intent by TIME for kids Informationstechnologien GmbH is decisive for compliance with the deadline. In the case of a legal transaction in which a consumer is not involved, the customer is not entitled to the aforementioned right of withdrawal.

2.2.4 Offsetting, assignment, retention, transfer of rights and obligations

(1) The customer may only offset or assign a claim against TIME for kids Informationstechnologien GmbH if it is undisputed by TIME for kids Informationstechnologien GmbH or has been legally established.

(2) The customer may exercise a right of retention based on another contractual relationship with
TIME for kids Informationstechnologien GmbH.

(3) TIME for kids Informationstechnologien GmbH is entitled to transfer rights and obligations from the contract to a third party. TIME for kids Informationstechnologien GmbH will notify the customer of the transfer of obligations. The customer is entitled to withdraw from the contract within a period of two weeks, calculated from the date of receipt of the transfer notification. The deadline is determined by the timely receipt of the declaration of intent by TIME for kids Informationstechnologien GmbH. In the case of a legal transaction in which a consumer is not involved, the customer does not have the right to withdraw from the contract due to the transfer of obligations; in this case, a transfer of obligations to a third party is also effective without the customer’s consent if TIME for kids Informationstechnologien GmbH has a legitimate interest in this, TIME for kids Informationstechnologien GmbH has informed the customer of the legitimate interests and the customer’s interests are not significantly impaired by the transfer of obligations. If these three conditions are not met, the customer may withdraw from the contract in accordance with the provisions set out in (3) sentences 2 and 3.

2.2.5 Transfer of material risk

(1) The risk of accidental loss of the goods to be delivered shall pass to the customer as soon as they have been handed over to the customer. If the customer is in default of acceptance, this shall be deemed equivalent to handover.

(2) In the case of legal transactions in which a consumer is not involved, the risk of accidental loss of the goods to be delivered shall pass to the customer at the time at which a consignment has been handed over to the person carrying out the transport or has left the warehouse for the purpose of shipment, even in the case of carriage paid delivery, and if the customer has expressly or impliedly requested shipment of the goods, in particular by providing a delivery address. If dispatch is delayed at the customer’s request, the risk of accidental loss shall pass to the customer upon notification of readiness for dispatch, whereby TIME for kids Informationstechnologien GmbH is entitled but not obliged to insure the delivery in the name and for the account of the customer.

2.3 Breaches of duty

2.3.1 Default of the customer with the payment obligation

(1) If a customer is in arrears with his payment obligation and is reminded to pay again with a deadline, this shall always be done while maintaining the contract.

(2) TIME for kids Informationstechnologien GmbH may, irrespective of the rights to which it is otherwise entitled, reclaim or take back the delivered goods to secure its claims if the customer is in default of payment.
TIME for kids Informationstechnologien GmbH must have notified the customer of this measure in advance and set a reasonable grace period for payment. TIME for kids Informationstechnologien GmbH will explain to the customer within one month of taking back the goods which rights TIME for kids Informationstechnologien GmbH will assert in connection with the customer’s default of payment. This one-month period only begins when TIME for kids Informationstechnologien GmbH has received all delivered goods in their entirety back from the customer.

(3) TIME for kids Informationstechnologien GmbH may suspend the performance of a contract or several contracts that are linked in terms of time and subject matter if the customer defaults on a payment incumbent on him or if there are concrete indications of the customer’s imminent inability to pay. In this case, TIME for kids Informationstechnologien GmbH may demand payment or partial payment concurrently with delivery or partial delivery, even if an advance performance obligation for TIME for kids Informationstechnologien GmbH was agreed in the contract. TIME for kids Informationstechnologien GmbH is additionally entitled to demand the provision of sufficient security for claims not yet due. If the customer does not provide the required securities or does not provide sufficient securities, TIME for kids Informationstechnologien GmbH may withhold performance and assert claims arising from the customer’s breach of duty.

2.3.2 Delay by the customer in accepting the service

(1) If the customer does not accept the contractual service offered to him, he is
TIME for kids Informationstechnologien GmbH is entitled to otherwise dispose of the goods to be delivered after the fruitless expiry of a reasonable period. In this case, TIME for kids Informationstechnologien GmbH will supply the customer with a replacement within a reasonably extended period. TIME for kids Informationstechnologien GmbH is not obliged to make a replacement delivery if the goods sold cannot be procured or can only be procured at a significantly higher price despite reasonable efforts. Under these circumstances, the customer’s right to a replacement delivery expires after TIME for kids Informationstechnologien GmbH has notified the customer of the impossibility or significant impediment, unless the customer agrees to an alternative delivery option offered by TIME for kids Informationstechnologien GmbH.

(2) If the customer does not accept the contractual service offered by TIME for kids Informationstechnologien GmbH in a legal transaction in which a consumer is not involved and is therefore in default of acceptance, TIME for kids Informationstechnologien GmbH may demand 20% of the agreed price for the offered service as compensation without providing proof.
TIME for kids Informationstechnologien GmbH reserves the right to claim higher actual damages. The customer is at liberty to prove that TIME for kids Informationstechnologien GmbH has only incurred a significantly lower loss or no loss at all.

(3) If dispatch is delayed at the customer’s request, TIME for kids Informationstechnologien GmbH is entitled to charge the customer for the costs incurred by storage, at least 0.017% of the invoice amount per day or part thereof, in the case of a legal transaction in which a consumer is not involved. TIME for kids Informationstechnologien GmbH is entitled to this claim from the first month after notification of readiness for dispatch.

2.3.3 Warranty obligations of TIME for kids Informationstechnologien GmbH / customer’s duty to inspect

(1) The warranty obligations begin with the delivery of the goods.

(2) In the case of a legal transaction in which a consumer is not involved, the warranty periods shall commence no later than two weeks after the goods have been dispatched.

(3) In the case of a purchase of consumer goods (§ 474 BGB), the warranty period for new items is two years and for used items one year, unless TIME for kids Informationstechnologien GmbH has fraudulently concealed a defect in the delivered item. This shall not affect the exclusion of warranty regulated under the following clause (10).

(4) In the case of a legal transaction in which a consumer is not involved, the warranty period for new items is one year, for used items a warranty is excluded, unless TIME for kids Informationstechnologien GmbH has fraudulently concealed the defect in these cases. The warranty periods specified in the following clauses (5) remain unaffected by the above definition of the warranty periods. [Gewährleistungsausschluss im Fall des Ablaufs der Rügefrist bei verspäteter Mängelanzeige] and (10) [Warranty exclusion for defects for which TIME for kids Informationstechnologien GmbH is not responsible and which originate from the customer’s sphere; purchase of software directly from the manufacturer, in particular by download] and their counter-exceptions.

(5) In the case of a legal transaction in which a consumer is not involved, the customer must inspect the delivered goods immediately upon receipt for defects, in particular for deviations in quantity and other obvious defects (§ 377 HGB). Obvious in this sense are defects that are so obvious that they are readily apparent even to the average non-expert buyer without special attention. The customer must notify TIME for kids Informationstechnologien GmbH in writing of any defects (deviations in quantity and obvious defects) within five working days (working days are Monday to Friday) of delivery. After expiry of this notification period, any warranty claims due to quantity deviations and obvious defects are excluded. Timely dispatch of the notification is sufficient to meet the deadline. The customer bears the full burden of proof for all claim requirements, in particular for quantity deviations and obvious defects, for the time of discovery and the timeliness of the dispatch of the notification to TIME for kids Informationstechnologien GmbH.

(6) In the case of a legal transaction in which a consumer is not involved, TIME for kids Informationstechnologien GmbH shall initially provide a warranty by repair or replacement delivery (subsequent performance) at its discretion. TIME for kids Informationstechnologien GmbH is entitled to a reflection period of at least 48 hours, based on two working days (working days are Monday to Friday), calculated from the receipt of the customer’s notification by TIME for kids Informationstechnologien GmbH, to exercise its right of choice in this respect. The customer must tolerate a maximum of three attempts at subsequent performance due to the same defect. If the supplementary performance fails, the customer may, at his discretion, demand a reduction of the remuneration (reduction) or rescission of the contract (withdrawal). However, the right of withdrawal is excluded for only minor breaches of contract (breaches of duty), in particular for only minor deviations in quantity or defects.

(7) If, in the case of a legal transaction in which a consumer is not involved, the customer chooses to withdraw from the contract after subsequent performance has failed, he shall not be entitled to any additional claim for damages against TIME for kids Informationstechnologien GmbH due to the defect complained about.

(8) The customer shall support TIME for kids Informationstechnologien GmbH in the elimination of errors to the extent reasonable.

(9) If the errors that have occurred are due to circumstances for which TIME for kids Informationstechnologien GmbH is not responsible, but which originate from the customer’s sphere and area of risk, there is no warranty obligation. This applies, for example, in the event of malfunctions due to the use of unsuitable operating material or in the event of non-compliance with installation requirements. Furthermore, the warranty does not apply if the customer has made changes or interventions to the object of purchase, unless the customer proves in connection with the error message to TIME for kids Informationstechnologien GmbH that the intervention was not the cause of the error. If the customer obtains updates or upgrades directly from the manufacturer or other third parties (e.g. standard software by online download via the Internet), TIME for kids Informationstechnologien GmbH shall not be liable for any resulting errors or defects. The customer is responsible for proving that an error or defect is not due to an update or upgrade obtained from the software manufacturer or the other third party. The presumption rule of § 476 BGB in favor of a consumer remains unaffected.

(10) The customer shall immediately report any errors that occur during contractual use to TIME for kids Informationstechnologien GmbH in a comprehensible form, stating the information suitable for rectifying the error. At the request of TIME for kids Informationstechnologien GmbH, the notification should be made in writing in the interest of both parties. In the case of PCs, including software, the fault rectification takes place at the headquarters of TIME for kids Informationstechnologien GmbH. The customer shall deliver the PC properly packaged, including the connecting cables. In the case of software, TIME for kids Informationstechnologien GmbH will send the customer a corrective measure for transfer. In the case of a legal transaction in which a consumer is not involved, the customer must keep all necessary technical equipment in operation at his own expense for the duration of the warranty period; this also applies to telephone connections and transmission lines.

(11) If TIME for kids Informationstechnologien GmbH has taken action due to an error message from the customer without there being an error, TIME for kids Informationstechnologien GmbH can demand compensation from the customer for its associated expenses.

(12) The customer’s claim to error correction is excluded if the error is not reproducible or cannot be demonstrated on the basis of machine-generated output.

2.3.4 Limitation of claims for damages due to slightly negligent breaches of duty or data loss

(1) In the event of slightly negligent breaches of duty, the liability for damages of
TIME for kids Informationstechnologien GmbH shall be liable for direct damages that are foreseeable and typical for the type of delivery and service.

(2) TIME for kids Informationstechnologien GmbH shall not be liable for damages in the event of slightly negligent breaches of insignificant contractual obligations.

(3) Insofar as the liability of TIME for kids Informationstechnologien GmbH is limited or excluded, this also applies with regard to the personal liability for damages of legal representatives, employees, freelancers, other representatives and vicarious agents of TIME for kids Informationstechnologien GmbH.

(4) The above limitations of liability in clauses (1) to (3) do not apply to claims by the customer under the Product Liability Act or to claims for injury to life, limb or health.

(5) Claims for damages by a customer against TIME for kids Informationstechnologien GmbH for the loss of data are excluded if the damage would not have occurred if the customer had properly backed up the data.

2.4 Additional conditions for the legal relationship with dealers

If the customer of TIME for kids Informationstechnologien GmbH is a retailer, the following additional conditions apply:

(1) In the case of a sale of consumer goods between the trader and a buyer
TIME for kids Informationstechnologien GmbH is entitled but not obliged in relation to the retailer to satisfy the consumer’s claims for defects in connection with goods supplied by TIME for kids Informationstechnologien GmbH itself. The retailer accepts the item described as defective by the consumer and informs TIME for kids Informationstechnologien GmbH. TIME for kids Informationstechnologien GmbH will have the item collected from the dealer at its own expense. TIME for kids Informationstechnologien GmbH shall, at its discretion, either return the item in a defect-free condition or deliver a defect-free item to the dealer, who shall in turn deliver the item to the consumer. TIME for kids Informationstechnologien GmbH will charge the retailer a lump sum of €15.00 plus VAT for any expenses incurred as a result (Section 478 (2) BGB). the statutory value-added tax will be reimbursed on presentation of invoice. Further claims for reimbursement of expenses by the dealer are excluded.

(2) The trader may make public statements within the meaning of § 434 para. 1 sentence 3 BGB on products which are the subject of a supply agreement between the retailer and TIME for kids Informationstechnologien GmbH only after prior written agreement with TIME for kids Informationstechnologien GmbH or in accordance with TIME for kids Informationstechnologien GmbH’s own information on these products. If the retailer disseminates public statements without observing these requirements, any deviations in the actual product characteristics from the public statements do not constitute a defect in the product in the relationship between TIME for kids Informationstechnologien GmbH and the retailer.

2.5. Take-back obligation

2.5.1 Exemption clause

TIME for kids Informationstechnologien GmbH is exempted by the customer from its obligation to take back goods in accordance with. § 10 para. 2 ElektroG exempted. This also applies to related claims by third parties. The customer must dispose of the delivered goods at its own expense in accordance with the statutory provisions after the end of their use.

2.5.2 Regulation regarding drop shipments

If the customer passes on goods supplied by TIME for kids Informationstechnologien GmbH to third parties, it is the customer’s duty to oblige the third party to dispose of the goods properly in accordance with the statutory obligations after the end of use at the third party’s expense. If the goods are passed on again, the customer must be obliged to do so. If third parties to whom goods supplied by TIME for kids Informationstechnologien GmbH have been passed on have not been obliged by the customer to contractually assume the obligation to dispose of the goods and to continue to do so, the customer is obliged to take back the goods supplied by TIME for kids Informationstechnologien GmbH at his own expense after the end of their use and to dispose of them properly in accordance with the statutory provisions. The customer is obliged to document the proper further obligation. He must be able to provide TIME for kids Informationstechnologien GmbH with proof of his continued obligation at any time.

2.5.3 Suspension of the statutory limitation period

TIME for kids Informationstechnologien GmbH’s claim for indemnification by the customer shall not become time-barred before the expiry of two years from the final termination of use of the device. The two-year suspension of expiry shall not commence until TIME for kids Informationstechnologien GmbH has received written notification from the customer regarding the termination of use.

2.6 General conditions (German law, place of jurisdiction, place of performance, export of IT systems)

(1) A contract concluded between the customer and TIME for kids Informationstechnologien GmbH is exclusively subject to German law. The application of the uniform international sales law (EKG and EAG) and the uniform UN sales law (Convention on Contracts for the International Sale of Goods) is excluded if TIME for kids Informationstechnologien GmbH acts as a supplier or service provider.

(2) The contract language is German.

(3) If the customer is an entrepreneur or a registered trader, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from a contractual relationship shall be Berlin. TIME for kids Informationstechnologien GmbH is also entitled to take legal action at the customer’s place of business.

(4) The place of jurisdiction shall also be Berlin if the customer does not have a general place of jurisdiction in the Federal Republic of Germany, moves his domicile or usual place of residence abroad after conclusion of the contract or his domicile or usual place of residence is not known to TIME for kids Informationstechnologien GmbH at the time the action is filed. TIME for kids Informationstechnologien GmbH is also entitled to take legal action at the customer’s place of residence or habitual abode.

(5) In the case of legal transactions in which a consumer is not involved, the place of fulfillment for the deliveries and services of TIME for kids Informationstechnologien GmbH as well as the place of payment for payments by the customer is Berlin.

(6) The export of data processing equipment is subject to separate export control regulations. The export requires the approval of the competent authorities.

2.7 Severability clause

(1) Should individual provisions of the above terms and conditions be or become invalid in whole or in part, or should there be a loophole in the terms and conditions, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced or the loophole filled by an appropriate provision which, as far as legally possible, comes closest to what the user or the contracting parties intended or what the user or the contracting parties would have intended if they had considered the point.