Terms and Conditions

 

§1
Scope

1.1.     These General Terms and Conditions (GTC) apply to all contracts and business relationships in the context of which Franco Investments S.àr.l. (hereinafter referred to as "Franco Investments") renders services to the client (hereinafter referred to as "AG"). AG can be both entrepreneurs and consumers within the meaning of the Consumer Protection Act.

1.2.     Unless expressly agreed otherwise in writing, Franco Investments provides its services exclusively on the basis of these General Terms and Conditions in the version valid at the time the contract was concluded, even if no express reference is made to them.

1.3.     Conflicting and deviating general terms and conditions, conditions, regulations etc. of the client will not become part of the contract unless Franco Investments expressly agrees to their validity in writing.

 

§2
Conclusion of the contract and right of withdrawal of consumers

2.1. Basically:

Offers from Franco Investments are subject to change and non-binding. If the AG sends an offer to Franco Investments, Franco Investments reserves the right to accept it. A contract is only concluded when it is signed by the AG and countersigned by Franco Investments. Subsidiary agreements and other additional agreements of the contract must be in writing to be effective..

2.2. The following applies to the online shop:

By submitting an online order (i.e. by selecting the product, filling in the requested data and confirming the order by the business customer using the online form provided on the Franco Investments website), by placing an order by e- Mail, fax or post as well as a telephone order, the client makes a binding offer that must first be accepted by Franco Investments. Franco Investments is not obliged to accept an offer from the client. If necessary, Franco Investments will inform the AG immediately. A contract for goods comes about through the actual delivery of the ordered goods, whereby an automated confirmation of the receipt of an order (i.e. the customer's offer) is not a declaration of acceptance.

In the case of services, the contract is concluded when Franco Investments confirms the client's order.

2.3.    Right of withdrawal and return conditions (cancellation instructions)

2.3.1. Right of withdrawal

If the AG is a consumer, he has the right to revoke a contract concluded with Franco Investments for goods or services within fourteen days without giving reasons. The cancellation period is fourteen days from the day on which the AG or a third party named by him who is not the carrier took possession of the goods. In the case of a contract for several goods which the customer ordered as part of a single order and which were delivered separately, the period begins on the day on which the customer or a third party designated by him who is not the carrier, the last took possession of the goods.

In the case of a contract for services, the cancellation period begins on the day the contract is concluded (point 2.2.)

In order to exercise the right of withdrawal, the AG must inform Franco Investments of its decision to withdraw from the contract by means of a clear statement. This declaration is to be sent to one of the following addresses:

E-Mail: info@franco-investments.com

Letter:
Franco Investments S.àr.l.
1, Rue de Turi
3378 Livange
Luxemburg

To meet the cancellation deadline, it is sufficient for the customer to send the communication regarding the exercise of the right of cancellation before the cancellation period has expired.

2.3.2. Consequences of revocation

If AG withdraws from the contract, Franco Investments shall have all payments received from AG, including delivery costs (except for additional costs resulting from AG choosing a different type of delivery than the one offered by Franco Investments, cheapest chose standard delivery) immediately and at the latest within fourteen days from the day on which Franco Investments received the notification of the withdrawal from this contract. For this repayment, Franco Investments uses the same means of payment that the AG used in the original transaction, unless something else is expressly agreed with the AG. In the event that the means of payment for the original transaction is not available for the repayment (e.g. cash on delivery), the repayment will be made by bank transfer to a bank account specified by the AG. Under no circumstances will the client be charged fees for this repayment. Franco Investments may refuse repayment until Franco Investments has received the goods back or until the client has provided proof that he has sent back the goods, whichever is earlier. The AG must send back or hand over the goods to Franco Investments immediately and in any event no later than fourteen days from the day on which he informed Franco Investments of the withdrawal from this contract. The deadline is met if the AG sends the goods before the period of fourteen days has expired. The proof and the risk of the return lie with the customer.

2.3.3 Returns and Return Shipping Costs

In the event of revocation, the AG is legally obliged to bear the direct costs for returning the goods. Goods that can be shipped must be returned in their original packaging to:

Franco Investments S.àr.l.
1, Rue de Turi
3378 Livange
Luxembourg

2.4.    In any case, the customer bears the risk of returning the goods.

 

§3
Services

3.1.     Franco Investments offers the following services to the customer:

• Sales of hardware & software;
• Programming of software;
• Installation of hardware & software;
• IT services.

3.2.    The AG is obliged to support and cooperate with Franco Investments in the fulfillment of the contract free of charge and immediately. In particular, AG Franco Investments must provide the documents and information necessary for the fulfillment of the contract.

3.3.    If the AG is an entrepreneur, he is obliged to name a competent contact person for Franco Investments.

3.4.    The work will be carried out by the AG to the extent required for proper completion, otherwise by Franco Investments. Insofar as the work is carried out at the AG, the employees of Franco Investments receive sufficient workplaces and work equipment as well as the necessary access to the company and the IT systems.

3.5. The development of individual organizational concepts and programs is carried out according to the type and scope of the binding information, documents and tools provided by the client. This also includes practice-oriented test data and test options to a sufficient extent, which the client makes available in a timely manner, during normal working hours and at his own expense. If the AG is already working on the system made available for the test in live operation, the responsibility for backing up the real data lies with the AG.

3.6. The basis for the creation of individual programs is the written description of services, which Franco Investments prepares against a cost calculation based on the documents and information made available to Franco Investments or makes available to the AG. This service description is to be checked by the AG for correctness and completeness and provided with his approval note.

3.8. When ordering library (standard) programs, the client confirms knowledge of the scope of services of the ordered programs with the order. This applies to both closed-source and open-source programs.

3.9. If it turns out in the course of the work that the execution of the order according to the service description is actually or legally impossible, one contracting party must notify the other contracting party immediately. If the client does not change the service description to that effect or creates the conditions for execution to be possible, Franco Investments can refuse execution. If the impossibility of execution is the result of an omission on the part of the client or a subsequent change in the service description by the client, Franco Investments is entitled to withdraw from the order. The costs and expenses incurred for the activities of Franco Investments up to that point, as well as any dismantling costs, are to be reimbursed by the client.

3.10.  Program carriers, documentation and service descriptions are sent at the expense and risk of the AG. Any additional training and explanations requested by the AG will be invoiced separately. Insurance will only be taken out at the request of the customer.

3.11.   Franco Investments is entitled to use subcontractors to fulfill the contract. There is no contractual relationship between the AG and the subcontractor.

 

§4
Payment

4.1.  All services are remunerated according to expenditure, unless a fixed price for specific project services has been expressly agreed. Hourly rates, daily rates (8 hours), travel expenses and ancillary costs are based on the current price list of Franco Investments. Travel time is working time.

4.2.    Unless otherwise agreed, invoicing takes place after (partial) acceptance has taken place.

4.3.    Payments are to be made within 5 days of receipt of the invoice without deduction.

4.4.    The Client can only object to invoices for remuneration at cost within 10 days of receipt.

4.5.    All prices are in euros and include statutory sales tax.

4.6.    The client is entitled to cancel already agreed appointments free of charge no later than 3 days before the appointment. If a cancellation occurs after this point in time, the full fee for the agreed duration of the consultation must be paid, unless the appointment is rescheduled and attended at a later date.

4.7. Cancellations by the AG are only possible with the written consent of Franco Investments. If Franco Investments agrees to a cancellation, he has the right to charge a cancellation fee of 30% of the order value of the entire project that has not yet been invoiced in addition to the services rendered and costs incurred.

4.8. If the expense increases and the cause lies within the client's area of ​​responsibility, Franco Investments can also demand payment of their additional expense at the agreed fee rates or (in the absence of agreed fee rates) at their standard rates.

 

§5
Acceptance

5.1. Franco Investments will notify the client in writing of the completion of the (partial) services.

5.2. Any defects must be reported to Franco Investments immediately. AG must carry out an inspection immediately upon handover. If the purchase is a company-related transaction for both parties, the buyer must notify the seller within a reasonable period of time of any defects in the goods that he has found or should have found by examining them in the ordinary course of business after delivery. If the buyer omits the notification, he can no longer assert claims for warranty, for damages due to the defect itself, or from an error about the freedom from defects of the item.
The statutory provisions apply to consumers.

 

5.3. If the AG and Franco Investments have agreed changes to the original service, the following also applies:

• Unless otherwise agreed in the individual contract, the originally agreed services and subsequently agreed services are to be accepted in separate procedures. If acceptance cannot be carried out in separate procedures due to the nature of the services, a joint acceptance procedure will take place.
• In the case of separate acceptance procedures, acceptance of the originally agreed services cannot be refused due to defects in the subsequently agreed services.

5.4. Insignificant defects do not prevent acceptance. If the AG works before acceptance in real operation, this is considered acceptance.

 

§6
Copyright and Use

6.1. After payment of the agreed fee, Franco Investments grants the AG a non-exclusive, non-transferable, non-sublicensable right to use the software for the hardware specified in the contract and to the extent of the number of licenses purchased for simultaneous use on several workstations, all on the basis of the contract with Franco Investments to use the work results for your own internal use. All other rights remain with Franco Investments.

6.2. The AG's involvement in the production of the software does not result in the acquisition of any rights to the use specified in the present contract. Any infringement of Franco Investments' copyrights will result in claims for damages, in which case full satisfaction must be paid.

6.3. The client is permitted to make copies for archiving and data backup purposes, provided that the software does not contain an express prohibition from the licensor or third parties and that all copyright and property notices are transferred to these copies unchanged.

6.4. Should the disclosure of the interfaces be necessary for the creation of interoperability of the software in question, this is to be commissioned by the AG from Franco Investments against reimbursement of costs. If decompilation takes place in accordance with copyright law, the results are to be used exclusively to establish interoperability. Misuse will result in damages.

6.5. If the client is provided with software whose license holder is a third party (“closed-source” as well as for “open-source” programs), the granting of the right of use is based on the license terms of the license holder (manufacturer).

 

§7
Resignation

7.1. In the event that an agreed delivery time is exceeded due to the sole fault of Franco Investments, the AG is entitled to withdraw from the relevant order by registered letter if the agreed service is not provided in essential parts within the reasonable grace period and the AG is not at fault.

7.2. Force majeure, industrial disputes, natural disasters and transport blockages as well as other circumstances beyond Franco Investments control release Franco Investments from the delivery obligation or allow it to reschedule the agreed delivery time.

 

§8
Warranty

8.1.     The warranty period begins when the service is handed over. For entrepreneurs it is six (6) months, for consumers the statutory warranty period applies.

8.2.    Franco Investments is to be given the opportunity to assess an alleged defect. If there is no defect, Franco Investments can demand reimbursement of the examination and improvement expenses according to the agreed fee rates or (in the absence of agreed fee rates) at their standard rates.

8.3.    The warranty does not apply if defects are demonstrably due to changes in the service by the AG or third parties from the sphere of the AG, which have not been approved in writing by Franco Investments.

8.4.    The following applies to entrepreneurs: In the case of services obtained from third parties, which Franco Investments procures for the AG, Franco Investments' warranty is limited to those warranty rights that Franco Investments has towards the respective manufacturer or supplier. At the request of the AG, Franco Investments is willing to assign the corresponding warranty claims to the AG with regard to services obtained from third parties, provided this is legally possible and also permissible within the framework of the contractual relationship with the third party. In this case, Franco Investments will be released from all claims.

8.5.    Franco Investments guarantees that the work results (in particular software) delivered by it are free of third-party property rights that restrict or exclude contractual use of the software solution.

§9
Liability

9.1.     Liability for damage caused by slight negligence is excluded. The existence of gross negligence must be proven by the AG. The liability of Franco Investments for direct damage caused by gross negligence is limited to the amount of the order value of the respective project for all such damage in the context of a project. In the case of recurring services, the total liability is limited to the amount of the contractual fee that the AG paid to Franco Investments within the last twelve months before the first damage occurred.

9.2.    Liability for indirect damage - such as lost profits, costs associated with business interruption, loss of data or claims by third parties - is expressly excluded.

9.3.    The exclusions or limitations of liability under this provision do not apply to personal injury or liability under the Product Liability Act.

9.4.    For entrepreneurs, claims for damages become time-barred within six (6) months of becoming aware of the damage and the damaging party, and within three (3) years in absolute terms. The statutory provisions apply to consumers.

9.5.    It is stated that Franco Investments is under no circumstances liable for services from other service providers.

9.6.    The AG bears sole liability for the existence of an adequate technical infrastructure (internet connection, hardware, etc.)

 

§10
Confidentiality

10.1.   Franco Investments undertakes to use all knowledge of trade secrets and information designated as confidential in writing within the framework of the contractual relationship only for the implementation of the contract and to treat it confidentially for an unlimited period of time.

10.2.  The obligation of confidential treatment does not apply to ideas, concepts, know-how and techniques related to program creation and the introduction of standard software, especially software products. It also does not apply to data that is already known to Franco Investments or that was known or becomes known outside of this contract. Franco Investments obliges all persons that Franco Investments uses for the execution of this contract to maintain confidentiality.

10.3.  Franco Investments may include the name of the client and a brief description of the service provided in a customer list. All other advertising references to the AG will be agreed with him in advance.

 

§11
Privacy

The client agrees that his personal data, namely name/company, profession, date of birth, company register number, powers of representation, contact person, business address and other addresses of the customer, telephone number, fax number, e-mail address, bank details, credit card data, UID number) for the purpose of fulfilling the contract and supporting the customer as well as for our own advertising purposes, for example for sending offers, advertising brochures and newsletters (in paper and electronic form), as well as for the purpose of pointing out the existing or previous business relationship with the customer (reference note) determined automatically and processed.

 

The client agrees that electronic mail will be sent to him for advertising purposes until further notice.

 

This consent can be revoked at any time in writing by e-mail, fax or letter to the contact details given at the top of the General Terms and Conditions.

 

§12
Final Provisions

12.1.   Changes and additions to this contract must be in writing. This also applies to the lifting of the writing requirement.

12.2.  Luxembourg law applies to the exclusion of its conflict of law rules and the UN Sales Convention.

12.3.  For consumers, this only applies insofar as the consumer has his domicile, habitual residence or place of employment in the district of the agreed subject-matter and locally competent court in point 13.3. If the consumer is resident abroad, Article 17 of Regulation (EC) 44/2001 (EuGVVO) of the Council of the European Union applies.

12.4. Should individual provisions of this contract be or become invalid, the remaining content of this contract shall not be affected. The contractual partners will work together in partnership to find a regulation that comes as close as possible to the ineffective provisions.