Terms and Conditions
GTC - Status 06/2020
The following General Terms and Conditions apply to all offers made by us and to all other contracts concluded with us (including the terms of delivery, price and payment).
I. Scope of application
The following General Terms and Conditions shall apply to all offers made by us and to all other contracts concluded with us. Conflicting general terms and conditions of the customer are expressly rejected. They shall only apply if this has been expressly confirmed by us in writing.
II. conclusion of contract
The customer is bound to an offer made by him for at least 1 month. A contract shall be concluded upon the issuance of a written order confirmation by us, but no later than upon delivery of the goods.
Verbal subsidiary agreements and subsequent amendments to the contract shall only apply if they are expressly confirmed by us in writing. The same applies to warranted characteristics. Illustrations and information in catalogs and brochures are authoritative if they are expressly designated as binding in the contract.
III. reservation of right of modification
We reserve the right to make changes to the models, designs or equipment as well as minor deviations therefrom if the change or deviation is reasonable for the purchaser taking into account our interests. The reservation of right to make changes applies in particular in the hardware area with regard to the short product life cycles.
Our prices are to be understood as the value of the goods without discounts, plus packaging costs and any insurance. For system machines, the goods prices are unpacked ex delivery works, without freight and without any insurance.
Value added tax shall be added at the respective statutory rate.
If our list prices for items for which we have list prices increase between conclusion of the contract and delivery due to a change in the price-forming factors, we shall be entitled to increase the price agreed upon conclusion of the contract by the amount by which our list prices have increased due to the increased costs between conclusion of the contract and delivery. We shall only be entitled to adjustment rights against non-merchants if there are more than 4 months between the conclusion of the contract and the agreed delivery date. In any case, the customer has the right to unilaterally withdraw from the contract in the event of a price increase for this reason from the time of notification.
If delivery periods and delivery dates specified by us are exceeded by more than one month, the Purchaser may set a reasonable grace period in writing within the meaning of Section 323 of the German Civil Code (BGB) of at least one further month with the declaration that it will refuse to accept the delivery item after expiry of the grace period. This shall not affect the statutory cases in which the setting of a deadline is dispensable. After unsuccessful expiry of the period of grace, the customer shall be entitled to withdraw from the contract by written declaration to us. The right to delivery and all other claims, including claims for damages, are excluded, except in cases of intent or gross negligence on our part. We are not responsible if the delivery is delayed or made impossible due to force majeure or other unforeseen obstacles, such as breach of duty by our suppliers, riots, operational disruptions, strikes or lockouts.
In the event of subsequent requests for changes and additions by the Purchaser, the agreed delivery time shall be deemed to be cancelled. A new reasonable delivery time or period shall be agreed.
An assumed fixed delivery and performance period begins with the entry into force of the contract and the agreement on the type of execution and under the condition of punctual and full compliance also with the obligations of the purchaser. In particular, upon request, he shall make available in full the documents we deem necessary and shall ensure that his employees are carefully trained in accordance with our specifications.
The customer shall be ready for acceptance on the delivery date announced by us and shall provide the connections and rooms required for installation. He shall be liable for all damages in the event of untimely acceptance and improper cooperation.
VI Transfer of risk
The risk of total or partial destruction as well as deterioration, loss, damage, loss or confiscation shall pass to the Purchaser upon handover of the subject matter of the contract to the Purchaser or, in the case of shipment to the Purchaser's registered office/place of residence (place of performance), upon dispatch of the subject matter of the contract.
VII Default of Acceptance by the Purchaser
If the customer remains 2 weeks in arrears with the fulfillment of his payment obligations or a security owed by him, then we are entitled, granting a grace period of at least 1 week, to demand payment or security instead, to withdraw from the contract or to claim damages for non-performance.
In the latter case, we may claim 20% of the contract value as compensation without proof of damage, unless the customer proves that we have suffered no damage at all or only significantly less damage. Any sales commissions paid shall be reimbursed in addition.
The purchaser shall not be in default of acceptance as long as he is prevented from accepting the goods by force majeure. If acceptance is delayed by the purchaser, we shall be entitled to claim the costs incurred by storage insofar as it takes place on our premises.
If the customer is in default of acceptance, the risk of accidental loss shall pass to him.
VIII. Terms of payment
All invoices are payable within 8 days of the invoice date. Cheques and any other means of payment shall only be accepted by special agreement and only on account of payment, with all collection and discount charges being charged. Securities given to us shall also serve to satisfy claims arising from any contractual relationship that may still be in the process of being established.
Accessories, spare parts and after-sales service are delivered net cash or cash on delivery.
If, in the case of payment by installments, the contracting party defaults on an installment or if, based on the economic circumstances of the contracting party, we must consider our claims to be at risk according to reasonable commercial judgment, then we may immediately make our total claim due for payment in writing by means of a demand letter. The provisions of §§ 499-507 BGB shall remain unaffected. If, after conclusion of the contract but prior to delivery, we become aware of specific circumstances in the economic circumstances of the customer which, based on a reasonable commercial assessment, make our claims appear to be no longer sufficiently secured, then we shall be entitled to demand advance payment on the claim or the provision of security.
The customer may only set off against our claim undisputed or legally established counterclaims and may only exercise a right of retention insofar as it is based on the same contractual relationship and, in the case of defective performance, only to the extent that the retained amount will not significantly exceed the costs or rectification of the defect.
Payments shall be made exclusively to us. Payments to an agent or intermediary shall be made at the risk of the customer. Payments made shall be offset in such a way that they are first offset against the costs incurred, then against the interest, then against the other debts of the customer and finally against the principal claim.
IX. Right of retention and assignment
Notwithstanding any further legal provisions or other agreements, we shall have the right of retention to all items in our possession and belonging to the customer until all claims against the customer arising from the existing business relationship have been satisfied. We are entitled to transfer rights and obligations from concluded contracts in whole or in part to third parties.
X. Retention of title
We retain title to the delivered goods and services until full payment of all claims arising or still to arise from the business relationship with the customer, irrespective of their nature and legal basis. The retention of title shall also apply to spare parts delivered subsequently and other subsequent deliveries. The purchaser shall not be transferred ownership of the software, including the system software. A non-exclusive and non-transferable right of use is granted for the contractually agreed purpose. All copyrights to the software together with the programs and parts derived therefrom and the associated documentation shall remain our property.
If claims against third parties arise as a result of actions of the contractual partner which are in breach of the contract, for example as a result of disposals of our property, these claims shall be assigned to us here and now.
In the event of non-fulfillment of the contractual obligations of the customer, we shall be entitled to assert our rights arising from the reservation of title ourselves and without recourse to judicial assistance. Any removal of the delivery item shall not give rise to any claims for damages against us on the part of the customer.
In the event that our right of ownership is impaired by third parties, in particular by compulsory enforcement measures, the customer shall notify us and provide us with the available documents (e.g. attachment protocol) and inform the third party of our ownership. For the duration of the existing retention of title, the customer shall be prevented from disposing of the subject matter of the contract. We shall be authorized to convince ourselves of the existence and the condition of our property, which must be handled with care, during the usual local business hours. The customer shall grant us free access to the storage room for this purpose.
The purchaser is obliged to handle our security property and storage properly and to insure it properly. Any claims arising against a liability insurance are hereby already assigned to us.
XI. Contractual penalty
In the event of culpable infringement of copyrights and rights of use to the software, we shall be entitled to a contractual penalty for each case of infringement, without prejudice to any further claims. In the event of unauthorized disclosure of software, this shall amount to at least EUR 5,000.00, otherwise either the remuneration demanded by the Purchaser or the usual remuneration that we can obtain. Up to the amount of the minimum lump sum, the customer shall be free to prove that no or only minor damage has occurred.
XII. Warranty and obligation to give notice of defects
We warrant that the performance rendered by us has the expressly agreed quality characteristics or, if a quality has not been agreed, that it is suitable for the contractually presupposed use, otherwise for the usual use, and that it has a quality that is customary for deliveries and services of this type and can be expected by the customer for deliveries and services of this type.
The purchaser, if he is a merchant, shall, in fulfillment of his obligation to give notice of defects pursuant to § 377 of the German Commercial Code (HGB), notify us in writing without delay of any defects that were recognizable upon delivery as well as of any defects that occur at a later date, stating in detail the problem that has occurred and the information necessary for the elimination of the defect. If the customer fails to simply notify us of the defect, he shall lose all warranty rights insofar as they are based on a defect that was recognizable upon delivery of the goods or on the defect that occurred later.
We reserve the right to fulfill our warranty obligation primarily by rectification of defects. The customer shall cooperate in this to the necessary extent free of charge, e.g. by making available employees, work rooms, hardware and software, data and telecommunication facilities. The customer shall grant us access to the hardware and software both directly and via remote data transmission. He shall answer our inquiries in this respect, check results and test improved software without delay.
The urgency of remedying defects shall be determined by the degree of hindrance to the Purchaser's operations caused at the Purchaser. If the rectification of defects finally fails, the Purchaser may, in accordance with the statutory provisions, reduce the remuneration, withdraw from the contract or, in the case of an existing continuing obligation, terminate the contract without notice. Claims for damages based on warranty law are excluded. Unless the defect was fraudulently concealed, the warranty rights shall expire one year from the beginning of the statutory warranty period, i.e. in the case of purchase of an item from delivery of the item (§ 438 II BGB) and in the case of manufacture of a work upon acceptance (§ 634a II BGB).
The Customer shall bear the burden of proof that defects or limitations in usability are not caused or contributed to by improper operation or an intervention carried out by the Customer. The Purchaser shall also bear the burden of proof that any defects or restrictions in usability are not caused by the system environment existing at the Purchaser. In such cases, the Purchaser shall not be entitled to any warranty claims. § 476 BGB remains unaffected.
If a third party asserts claims which conflict with the exercise of the right of use contractually granted by us to the Purchaser, the Purchaser shall notify us thereof immediately and in full. The customer authorizes us already at this point in time to conduct the dispute with the third parties out of court and in court. If we make use of this authorization, the customer may not acknowledge claims of the third party without our consent. In return, we assure the customer that third party claims will be defended at our expense and that the customer will be indemnified from all costs and damages associated with the defense of the claim, provided that these are not based on a breach of duty on the part of the customer. We shall be free to satisfy the claims asserted by the third party. Insofar as we are of the opinion that the claims of which a third party claims fame actually exist, we shall be at liberty, in our relationship with the customer, to replace the disputed items with other items which are also in conformity with the contract. In addition, the statutory provisions for defects of title shall also apply in this respect, in particular the warranty period of one year pursuant to Clause XII, No. 4.
The following shall apply to our liability, unless otherwise stipulated in the above clauses: We shall be liable in the event of intent and gross negligence. We shall also be liable in the event of negligent breach of obligations, the fulfillment of which is essential for the proper execution of the contract, the breach of which jeopardizes the achievement of the purpose of the contract and the observance of which the customer regularly relies on. In the latter case, however, we shall not be liable for damages that are not foreseeable and not typical for the contract. We shall not be liable for slightly negligent breach of other obligations. The above exclusions of liability shall not apply in the event of injury to life, limb or health or in the event of guarantees expressly given by us. The Product Liability Act remains unaffected. Liability for the recovery of the customer's data shall otherwise be limited in amount to the costs necessary to restore the data if it is regularly backed up in the manner specified by us or the provider of third-party software or can otherwise be reconstructed from machine-readable data material with reasonable effort. We have a business liability insurance with VHV Allgemeine Versicherung AG / VHV Platz 1 / 30177 Hannover.
XIV. Dispute Resolution Procedure before a Consumer Arbitration Board
We are not willing and obliged to participate in dispute resolution proceedings before a consumer arbitration board.
XV. Final Provisions
The place of jurisdiction for all mutual claims arising from contracts with fully qualified merchants, legal entities under public law, special funds under public law and persons who do not have a general place of jurisdiction in Germany, including for claims arising from bills of exchange and checks, is 22767 Hamburg, Germany. The same shall apply if the customer's residence is unknown or if the customer has moved his residence or habitual abode abroad. If the claims in such cases relate to transactions of our branch offices, we may also assert our claims before the courts at the seat of the branch office.
The place of performance for both parties and for all present and future claims arising from the business relationship is 22767 Hamburg, Germany, provided that the customer is an entrepreneur. Insofar as the claims are based on a business transaction of our branch office, the place of performance vis-à-vis entrepreneurs shall be the registered office of the branch office.
The contractual relationship shall be governed exclusively by German law to the exclusion of international private law and the UN Convention on Contracts for the International Sale of Goods.
Amendments to the contract, additions or declarations relevant to the contract must be made in writing.
The customer may assign claims against us arising from contracts concluded with us to third parties only with our express written consent.
Should one of these provisions prove to be invalid, this shall not affect the validity of the remaining provisions of our General Terms and Conditions. In this case, the parties undertake to agree on a replacement provision in place of the invalid provision that comes as close as possible to the purpose of the agreement and leads to the same economic result as far as possible.