Kindly note that these terms are translated from German, the German version is to be the Master version, in case of translation errors.

Terms of contract within the scope of the use of OPAGO Pay

of

OPAGO GmbH
Moosstraße 4
83404 Ainring

registered in the Commercial Register of the Local Court of Munich under HRB 31810, www.OPAGO-pay.com (hereinafter referred to as “we”, “our”, “us”, “OPAGO” or “Provider”).

1 Scope, Form

1.1 These General Terms and Conditions (hereinafter referred to as “Terms” or “Conditions”) apply to all business relationships with our customers (hereinafter jointly referred to as “you”, “your” or “user”). The Terms and Conditions apply both in the relationship between us and the payee (hereinafter referred to as “Merchant” or “Payee”) and between us and the payer (hereinafter referred to as “Payer” or “Merchant’s Customer”). 
1.2 The Terms and Conditions apply to contracts for the use of our payment service via Bitcoin Lightning (hereinafter referred to as the “Service” or “OPAGO Pay”) and other services, the use of our apps and software (hereinafter referred to as the “App”) and the use of our payment devices (hereinafter referred to as the “OPAGO PoS Terminal”) (all services hereinafter also referred to collectively as “Services”).
Unless otherwise agreed, the Terms and Conditions shall apply as amended from time to time.
Our terms and conditions shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent applies in all cases, for example even if you refer to your own General Terms and Conditions within the scope of registration or use and we do not expressly object to this.
1.3 Legally relevant declarations and notifications with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing. Legal formal requirements and further proof, in particular in the case of doubts about the legitimacy of the declarant, remain unaffected.
1.4 References to the applicability of statutory provisions shall only have a clarifying significance. Therefore, even without such clarification, the statutory provisions shall apply, unless they are not directly amended or expressly excluded in a permissible manner in these Terms and Conditions.
1.5 OPAGO is not a payment service provider within the meaning of §§ 675c et seq. BGB and within the meaning of the ZAG. The relevant provisions of §§ 675c et seq. BGB as well as the ZAG shall not apply in the contractual relationship between OPAGO and the merchant as well as between OPAGO and the merchant’s customer.
1.6 In order to use our services, you must accept these terms and conditions as well as our privacy policy. By accepting these terms and conditions, you acknowledge that you have read, understood and accepted our terms and conditions and privacy policy.

2. service

2.1 We offer our customers the processing of payments by Bitcoin in the Lightning Network (hereinafter “LN”). For this purpose, we offer a PoS terminal (hereinafter “OPAGO PoS terminal”). With this technical device, Bitcoin payments can be sent and received in the LN. And secondly, we provide you with access to the LN via the open source software LNBits.
2.2 You use our service by instructing and/or accepting transactions of Bitcoin via the LN at an OPAGO PoS terminal provided by us and purchased by the merchant. This allows the goods or services purchased from the Merchant to be paid for in Bitcoin. The prerequisite for this is that both the Merchant and the Merchant’s customer each have their own Bitcoin LN Wallet.
2.3 Within the scope of the use and transaction via the OPAGO PoS Terminal, the Merchant shall specify the payment amount in the desired currency to be paid by the Merchant’s Customer. The merchant’s customer scans the generated payment link for the LN transaction and releases it in his LN Wallet. The amount is automatically converted from the selected currency into Bitcoin according to the current exchange rate. As soon as the transaction has been confirmed by the merchant’s customer, the transaction is carried out. For this purpose, we act as channel manager and block our own Bitcoin owned by OPAGO in order to execute the transaction on the LN. No bitcoin belonging to the user is blocked. We act only as a payment intermediary.
2.4 All applicable fees for the package selected by the Merchant and for the relevant Transaction shall be paid by the Merchant. By accepting these terms and conditions, you, the merchant, agree that we may retain the specified fees from you as part of the Bitcoin payout. The merchant can choose whether the fees are to be added to or deducted from the amount entered by him in the OPAGO PoS terminal during the generation of the payment link.
2.5 The prices for our service result from the respective applicable version of our price plan https://opago-pay.com/pricing and in each case for the package selected by you.
2.6 We will arrange for the crediting of Bitcoin resulting from the Transactions and pay out any Bitcoin owed to the Merchant under these Terms, less any fees (see clause 2.4), to the Merchant’s registered Bitcoin LN Wallet after we have received payment from the Merchant’s customer.

3 Registration

3.1 To use our service, you must register and create an account. To do this, you must provide an email address, set a password and have a Bitcoin LN Wallet to access the Service.
3.2 Once you have registered, you will receive a confirmation link by email to your re-registered email address.
3.3 It is necessary that you provide information about yourself or your company. You confirm that all information provided by you about yourself and/or your company is correct at the time of registration. You must ensure that all information submitted by you and/or stored in your account is complete, accurate and up to date.
3.4 You may register as a sole trader, as a business or as an individual. The services are available to sole traders or companies for business purposes only. Our service is not available to private individuals and/or sole traders or companies for personal or private purposes. This means that no payment transactions can be made between private individuals. Payment transactions can only be made if at least one of the parties is a sole trader or a company.
3.5 Once you have opened an Account and accepted these Terms, we will be entitled to carry out a check on you and/or your business (e.g. a credit check and an anti-money laundering and counter-terrorist financing check). You are obliged to assist us in these matters as required and to provide all necessary details and information.
3.6 Upon successful registration, your account will be registered in our system (hereinafter “OPAGO Merchant Account”). Your Account is not a bank account and therefore not covered by any compensation scheme. Neither deposits nor withdrawals of money (irrespective of the currency) nor e-money within the meaning of § 1 ZAG can be made on your account. Your OPAGO Merchant Account can only be used to transfer Bitcoin via the Lightning Network (hereinafter “LN”).
3.7 We do not provide our own Bitcoin LN Wallet for this purpose. You must have your own Bitcoin LN Wallet in order to register. We would like to point out that you have to observe the regulations and conditions of use set up by the respective service provider of the Bitcoin LN Wallet on your own.
3.8 If the Bitcoin LN Wallet you have provided is incorrect or incomplete, or if for any other reason we are unable to verify that the Bitcoin LN Wallet is in your name, we may deregister the Bitcoin LN Wallet from your Account. You agree that we will not be obliged to pay out any Bitcoin to you until you have provided correct and complete details of the Bitcoin LN Wallet and we have been able to verify that you are the owner of the Bitcoin LN Wallet.
3.9 We may restrict or suspend your access to and use of the Services and terminate and close your Account if you provide us with inaccurate, untrue or incomplete information or if you fail to comply with the registration requirements. To do this, we will send you a notice to your registered email address. If you do not respond within thirty (30) days and provide accurate and complete information, we may close your account.
3.10. You are responsible for managing your password and any other personalised security features. You must keep your data and passwords safe from unauthorised access by third parties.
3.11. You are obliged to notify us immediately if you discover unauthorised access or have reason to believe that your access data has been lost or stolen or that an unauthorised third party has knowledge of the access data. In this case, you are obliged to change your account data in order to prevent any further unauthorised access.
3.12. If you have lost your access data, we are entitled to access your OPAGO Merchant Account and to generate a new password for you. Your express consent in writing or text form is required for this. If we have doubts about the ownership of the account, we are entitled to request further information from you in order to establish the ownership of the account. In this case, you are obliged to provide the documents or declarations requested by us.

4. terminal equipment

4.1 As a Merchant, you may use one or more terminals per Account.
4.2 The OPAGO PoS terminal can be purchased by merchants via our homepage. The ownership of the OPAGO PoS terminal purchased by the merchant remains with the merchant even after termination of the contractual relationship. In this respect, the terms and conditions agreed within the framework of the purchase contract shall apply.
4.3 The Merchant is obliged to install all app and/or software updates of the OPAGO PoS Terminal. We reserve the right to restrict or suspend our services if the app and/or software updates of the OPAGO PoS-Terminal have not been made within 14 days after the announcement of the provision of the app and/or software update.
4.4 A permanent connection to the Internet is required for the full use of our service. The OPAGO PoS terminal must therefore be connected to the internet via an internet connection provided by the retailer. As a retailer, you are responsible for ensuring that a functioning internet connection is available. The costs in this regard are to be borne by the merchant.
4.5 It is not permitted to modify the hardware or software of the opage device.

5 Scope of our services

5.1 Our obligations are limited to providing an account, services in the form of access to the LN and the performance of channel management. We may suspend the Services to be provided to you or limit the duration of the Services, for example, to carry out maintenance or if required to do so by law or if you fail to comply with any material obligations under these Terms.
5.2 You must notify us immediately if you experience any interruptions, delays or errors in the Services. You must provide us with all necessary information and assistance to identify and remedy any interruptions, delays or errors.
5.3 An existing Bitcoin LN Wallet is required in order to use our service and must be provided by you independently. If this incurs costs, these are to be borne by you. We do not assume any liability for the required services of third parties as well as for violations due to the use of the services of third parties which are required for the use of our services. Clause 7.4 applies accordingly.
5.4 We are entitled to suspend our services or terminate the contractual relationship and close the account without notice if there is reasonable suspicion of money laundering or terrorist financing or if required by law.
5.5 We may also suspend our services or terminate the contractual relationship and close the Account if or when you breach these Terms. Clause 8.2 applies accordingly.

6. fees, costs and settlements

6.1 Fees are incurred for the use of our services, which are to be borne by the merchant (cf. clause 2.4).
The prices and fees for our service result from the currently valid version of our price plan https://opago-pay.com/pricing and in each case for the package selected by the merchant during registration.
6.2 You can subsequently change to another package via your customer account. When you change the package, the prices and costs applicable to the package in question will apply in accordance with the price plan in force at the time.
6.3 The prices are in % of the respective transaction volume and are quoted in Bitcoin. They are converted into Euros at the exchange rate applicable on the day of the transaction and are therefore quoted in Euros exclusive of the applicable value added tax (currently 19%).
6.4 You can view the transaction history and the fees incurred in your account. You are obliged to monitor your transaction history. If you discover any incorrect, false or unauthorised transactions, you must notify us immediately.
6.5 Upon completion of a transaction, we will issue you with a statement of account for the transaction, including any fees incurred. You are obliged to check this statement immediately upon receipt. You must object to incorrect statements immediately, at the latest 7 working days after receipt of the statement. Failure to object in good time shall be deemed to constitute approval, insofar as the incorrect statement is not due to our fault.
6.6 Unless we are required to do so by law, you are solely responsible for keeping and maintaining records of all transactions and other data relating to your account and your use of our services.
6.7 Depending on your customer’s lightning wallet additional lighting network routing fees may be charged to your customer. These are not visible to us and will be automatically added on top of the amount charged.
6.8 Depending on your choice of lighting wallet additional lighting network routing fees may be charged. These are outside of our control and will be automatically deducted from the payout.

7. liability

7.1 We shall not be liable for any loss or damage unless caused intentionally or by gross negligence by us or our agents. In particular, we shall not be liable for damage caused by force majeure, unforeseeable events, in particular network disruptions, computer failures or criminal activities by third parties.
7.2 We are also not liable for unauthorised or faulty transactions, unless the faulty transaction was caused intentionally or through gross negligence by us or our vicarious agent. In particular, we shall not be liable for damage caused by force majeure, unforeseeable events, in particular network disruptions, computer failures or criminal activities by third parties.
7.3 We reserve the right to restrict our service in whole or in part, temporarily or permanently, due to maintenance work, software updates, capacity issues and other events beyond our control. We will always endeavour to give prior notice (usually two working days) of any maintenance, software updates or changes to the server. This only applies if it is to be expected that this will lead to a breakdown in the availability of the services offered or if advance notice appears necessary for other reasons.
Outages during necessary maintenance or repair work and/or software updates shall not give rise to any claims against us unless we have acted with intent or gross negligence.
7.4 Excluded from the exclusion pursuant to sections 7.1 to 7.3 are claims for damages arising from the breach of material contractual obligations (cardinal obligations), from injury to life, limb or health if we are responsible for the breach of obligation, and for compensation for other damages based on an intentional breach of obligation by us or our vicarious agents. Also not excluded are cases in which we or our vicarious agents act fraudulently.

8 Duration of the contract and termination

8.1 The term of the contract shall also be determined by the respective price plan.
8.2 The contract may be terminated by either contracting party with two weeks’ notice to the end of the month, but no earlier than the expiry of the respective minimum term in accordance with the valid payment plan.
The possibility of termination for good cause shall remain unaffected.
8.3 Any termination must be in writing in order to be effective.

9 Applicable law and place of jurisdiction

9.1 All our services, in particular the transactions, are provided in the Federal Republic of Germany. These Terms and Conditions and the contractual relationship between us and the Seller shall therefore be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
9.2 If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from contractual relationships between the customer and the vendor shall be the registered office of OPAGO.

Terms of contract within the scope of purchase contracts

of

OPAGO GmbH, Moosstraße 4
83404 Ainring

registered in the Commercial Register of the Local Court of Munich under HRB 31810, www.OPAGO-pay.com (hereinafter referred to as “we”, “our”, “us”, “OPAGO” or “Supplier”).

1 Scope, Form

1.1 These General Terms and Conditions of Sale (GTCS) shall apply to all our business relations with our customers (“Buyer”). The GCS only apply if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a public-law special fund.
1.2 The GCS apply to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GCS in the version valid at the time of the Buyer’s order or in any case in the version last notified to him in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case. 1.3 Our GCS shall apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
1.3 Our GTCS shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent shall apply in any case, for example even if the Buyer refers to his General Terms and Conditions within the scope of the order and we do not expressly object to this.
1.4 Legally relevant declarations and notifications by the Buyer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing. Written form within the meaning of these GTC includes written and text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in the event of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
1.5 References to the applicability of statutory provisions shall only have a clarifying meaning. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTCs.

2 Conclusion of contract

2.1 The customer may select products from OPAGO’s product range on OPAGO’s website and collect them in a so-called shopping basket by clicking on the button “add to basket”. By clicking on the button “order with obligation to pay”, the customer submits a binding order to purchase the goods in the shopping basket. Before sending the order, the customer can change and view the data at any time. However, the application can only be submitted and transmitted if the customer has accepted the terms and conditions of the contract by clicking on the “Accept GTCS” button and has thereby included them in his application. 2.2.
2.2 We will then send the customer an automatic confirmation of receipt by e-mail in which the customer’s order is listed again and which the customer can print out using the “Print” function. The automatic confirmation of receipt merely documents that the customer’s order has been received by the supplier and does not constitute acceptance of the application. The contract is not concluded until we issue a declaration of acceptance, which is sent in a separate e-mail (order confirmation). In this e-mail or in a separate e-mail, but at the latest upon delivery of the goods, the text of the contract (consisting of the order, GTC and order confirmation) shall be sent by us to the customer on a durable data medium (e-mail or paper printout) (confirmation of contract). The text of the contract shall be stored in compliance with data protection laws. Acceptance can also be declared by delivery of the goods to the buyer.
2.3 Our offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve property rights and copyrights.
2.4 The order of the goods by the Buyer shall be deemed to be a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 4 weeks of its receipt by us.
2.5 The contract shall be concluded in German.

3 Delivery period and delay in delivery

3.1 The delivery period shall be agreed individually or stated by us upon acceptance of the order. If this is not the case, the delivery period shall be approx. 2 weeks from the conclusion of the contract.
3.2 If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this immediately and at the same time inform him of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already paid by the buyer. Non-availability of the service shall be deemed to exist, for example, in the event of late delivery by our supplier, if we have concluded a congruent hedging transaction, in the event of other disruptions in the supply chain, e.g. due to force majeure, or if we are not obliged to procure in the individual case. 3.3.
3.3 The rights of the Buyer pursuant to § 8 of these GTCS and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

4 Delivery, transfer of risk, acceptance, default of acceptance

4.1 Delivery shall be made ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At the buyer’s request and expense, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
4.2 The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the buyer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. If the buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance. 4.3 If the buyer is in default of acceptance, the risk shall pass to the buyer.
4.3 If the buyer is in default of acceptance, fails to cooperate or delays our delivery for other reasons for which the buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, we shall charge a lump-sum compensation of 0.5% of the purchase price per calendar week up to a maximum of 10% of the purchase price, starting with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for dispatch.
The proof of a higher damage and our legal claims (in particular reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The buyer shall be entitled to prove that we have incurred no damage at all or only significantly less damage than the aforementioned lump sum.

5. prices and terms of payment

5.1 Unless otherwise agreed in individual cases, all prices stated on our website are inclusive of the applicable statutory value added tax [alternative: plus statutory value added tax].
5.2 The corresponding shipping costs shall be indicated to the customer in the order form and shall be borne by the customer.
5.3 The customer may make payment in advance, by direct debit, credit card or Bitcoin. Payment of the purchase price is due immediately upon conclusion of the contract. If the due date for payment is determined by the calendar, the customer is already in default by missing the deadline. In this case, the customer shall pay the supplier interest on arrears for the year at a rate of 5 percentage points above the base interest rate. Upon expiry of the aforementioned payment deadline, the buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damage caused by default. Our claim to the commercial due date interest rate (§ 353 HGB) against merchants remains unaffected.
5.4 The buyer shall only be entitled to set-off or retention rights insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer’s counter rights shall remain unaffected, in particular in accordance with clause 6.2 sentence 2 of these GTC.
5.5 If it becomes apparent after the conclusion of the contract (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardised by the buyer’s inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.

6. retention of title

6.1 We retain title to the goods sold until all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
6.2 The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The buyer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to the goods belonging to us.
6.3 In the event of any breach of contract by the Buyer, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the buyer does not pay the due purchase price, we may only assert these rights if we have previously set the buyer a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.
6.4 Until revoked, the Buyer shall be entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition. 

7. claims for defects of the buyer

7.1 The statutory provisions shall apply to the Buyer’s rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly/installation or defective instructions), unless otherwise stipulated below. In all cases, the special statutory provisions on the reimbursement of expenses in the case of final delivery of the newly manufactured goods to a consumer (supplier recourse pursuant to §§ 478, 445a, 445b or §§ 445c, 327 para. 5, 327u BGB) shall remain unaffected, unless an equivalent compensation has been agreed, e.g. within the framework of a quality assurance agreement.
7.2 The basis of our liability for defects is above all the agreement reached on the quality and the presumed use of the goods (including accessories and instructions). All product descriptions and manufacturer’s specifications which are the subject of the individual contract or which were publicly announced by us (in particular in catalogues or on our Internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on quality in this sense. Insofar as the quality has not been agreed, it is to be assessed in accordance with the statutory regulation whether a defect exists or not (§ 434 para. 3 BGB). Public statements by the manufacturer or on his behalf, in particular in advertising or on the label of the goods, take precedence over statements by other third parties.
7.3 In the case of goods with digital elements or other digital content, we only owe the provision and, if applicable, the updating of the digital content insofar as this expressly results from a quality agreement in accordance with section 7.2. In this respect, we do not assume any liability for public statements made by the manufacturer and other third parties.
7.4 As a matter of principle, we shall not be liable for defects of which the buyer is aware at the time of the conclusion of the contract or is not aware due to gross negligence (§ 442 BGB). Furthermore, the buyer’s claims for defects presuppose that he has complied with his statutory duties of inspection and notification (§§ 377, 381 HGB). If a defect becomes apparent upon delivery, inspection or at any later time, we must be notified thereof in writing without delay. In any case, obvious defects shall be notified to us in writing within five working days of delivery and defects which are not apparent on inspection within the same period of time from discovery. If the buyer fails to carry out the proper inspection and/or to give notice of defects, our liability for the defect which was not notified in time or not properly notified shall be excluded in accordance with the statutory provisions.
7.5 If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery). If the type of subsequent performance chosen by us is unreasonable for the buyer in the individual case, he may reject it. Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
7.6 We shall be entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the buyer shall be entitled to retain a part of the purchase price which is reasonable in relation to the defect.
7.7 The buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the buyer shall return the defective item to us at our request in accordance with the statutory provisions; however, the buyer shall not have a claim to return of the item.
7.8 We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, dismantling and installation costs, in accordance with the statutory provisions and these GTC, if a defect is actually present. Otherwise, we may demand reimbursement from the buyer of the costs incurred as a result of the unjustified request for rectification of a defect if the buyer knew or was negligently unaware that there was actually no defect.
7.9 Claims of the buyer for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with § 8 and are otherwise excluded.

8. other liability

8.1 Unless otherwise stipulated in these GTCS including the following provisions, we shall be liable for a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
8.2 We shall be liable for damages – irrespective of the legal grounds – within the scope of fault liability in the event of intent and gross negligence. In the case of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), only for
8.2.1. for damages resulting from injury to life, body or health,
8.2.2. for damages resulting from the breach of an essential contractual obligation (obligation, the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to the compensation of the foreseeable, typically occurring damage.
8.3 The limitations of liability resulting from clause 8.2 shall also apply to third parties as well as in the event of breaches of duty by persons (also in their favour) for whose fault we are responsible in accordance with statutory provisions. They do not apply if a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the buyer under the Product Liability Act.
8.4 The buyer may only withdraw from or terminate the contract due to a breach of duty which does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory prerequisites and legal consequences shall apply.

9. limitation period

9.1 Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
9.2 The above limitation periods of the law on sales also apply to contractual and non-contractual claims for damages of the buyer which are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages by the Buyer pursuant to Sections 8.2.1 and 8.2.2 as well as pursuant to the Product Liability Act shall become statute-barred exclusively in accordance with the statutory limitation periods.

10 Choice of law and place of jurisdiction

10.1 These GCS and the contractual relationship between us and the Buyer shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
10.2 If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office. The same shall apply if the buyer is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTCS or a prior individual agreement or at the general place of jurisdiction of the buyer. Overriding statutory provisions, in particular those relating to exclusive jurisdiction, shall remain unaffected.

11 Declaration of merchant status

By accepting these Terms, you confirm that you are registering for the Service as a business customer (i.e. a person who enters into transactions in connection with his or her independent commercial or professional activity, and not as a consumer, i.e. a natural person acting for purposes other than his or her commercial or professional activity).