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3. Offer and Conclusion of Agreement
1) The offers of the Seller within its price lists and
advertisements shall be subject to change and under the condition of
self-delivery as far as the Seller delivers components manufactured
or provided by third parties. Special products (Postenware) offered
by the Seller shall only be available while supplies last.
2) Any slight deviation from the product details shall be considered
as approved as far as such product details are not unreasonable for
the purchaser.
3) The agreement shall be closed not earlier than (i) the Seller has
confirmed the order of the object of purchase in writing or (ii) the
delivery / transfer of the product has been executed.
4. Prices
1) The prices within the Seller’s order confirmation shall be
relevant. Such prices will be deemed fixed for the products in stock
at the time of the order. In case of supply bottlenecks as well as
purchases, the actual price at the day of delivery shall be valid.
Any price shall be considered as price excl. VAT, unless not
otherwise stated. The prices shall not include any costs and
additional costs of the transportation, e.g., postage,
transportation charges, delivery charges, etc.; the purchaser shall
be separately invoiced for such costs, unless otherwise agreed.
2) Any risk of damage or loss of the delivered products shall be
vested in the purchaser after (i) such products have left the
distribution warehouse of the Seller and (ii) the transfer of such
products at the place of collection.
5. Supplies/Deliveries
1) Any date or term of delivery, which may be obligatory agreed on
or agreed on in a non-binding way, shall be stated in writing. Any
term of delivery fixed in writing shall commence at the conclusion
of the agreement. In case of written agreement changes, a new date
of delivery or a new term of delivery shall be agreed on at the same
time, if necessary.
2) In case the Seller shall be in delay with the supply/delivery of
the product(s), the Seller shall only be liable for any damage of
the purchaser caused by such delay, if the default had resulted (i)
from the breach of substantial contractual obligations or (ii) by
the Seller’s intent or gross negligence. The purchaser may only
claim for damages due to the non-fulfillment, even after the
appointment of a date including the refusal to accept performance,
if such default resulted from the intent or gross negligence or, in
case of slight negligence, the damage of substantial contractual
obligations.
3) In case of any delay of delivery resulting from force majeure,
intervening acts of state, natural disasters, war, traffic jam,
strike in own companies, subcontracting firms or carriers, the
Seller shall be authorized to make up the supply/delivery (of the
products) after the elimination of the objection. However, both
parties may completely or partially rescind from an agreement being
concluded (between the parties), if one of the afore-mentioned
events may result into a delay of delivery of more than two months
beyond the agreed term. Any further claims of the contractual
parties shall be excluded.
4) The Seller shall be authorized for partial performances.
6. Delayed Acceptance
If the purchaser (i) declines acceptance of the delivery items after
the expiration of a further delivery period granted by the Seller or
(ii) states that the products will not be accepted (by the purchaser),
the Seller may refuse the fulfillment of the agreement and claim for
compensation due to the inexecution (of the agreement). The Seller
shall be authorized to claim for the compensation of the resulting
effective damage from the purchaser.
7. Payment
1) The payment of the Seller’s products on order or services by the
purchaser shall be executed within a maximum of 10 days after the
invoicing as net payment, without discount or other deductions,
unless agreed on advance payment or cash on delivery. In case of
partial deliveries, only the pro rata purchase price shall be
payable. Should the purchaser not pay the invoiced amounts due
within such term, the purchaser shall get a payment reminder from
the Seller. The reminder charges shall amount to € 5.00 per payment
reminder.
2) Any payment shall be considered as executed, if the Seller may
dispose of such payment amount.
3) If the purchaser will be in delay with the payment, the Seller
shall be authorized to charge interests expenses in the amount of 5
% p.a. (consumers), or 8 % p.a. (merchants) respectively, above the
base rate as of the corresponding time. During the term of the delay,
the Seller shall by authorized at any time to recede from the
agreement, reclaim the delivered products, and claim for
compensation due to the non-fulfillment of the agreement on the part
of the purchaser.
4) The purchaser may only execute a lien due to counterclaims based
on the same contractual relationship. In case of ongoing business
relations, any single order shall be considered as separate
contractual relationship. Any offset against claims of the Seller
shall only be permissible on the basis of undisputed or legally
valid proved claims.
8. Right of Use
By means of the payment of the price agreed upon for the offered
software programs, the purchaser shall obtain a non-transferable
single right of use of the software for the usage on an IT system.
Such right shall only true for the programs developed and adjusted
by the Seller and for programs negotiated and traded by the Seller.
The software provided by the Seller and not manufactured by the
Seller itself is subject to Articles 69a, 69g German Law on
Copyright and the rules and regulations of the corresponding license
agreement, if applicable. The Seller holds trademark rights for such
programs. As far as such rights are owned by third parties, the
Seller may have corresponding rights of use.
9. Warranty
1) The purchaser shall be obligated to inspect the products
immediately when receiving, or collecting respectively, at the
location agreed upon with respect to any transport damage and notify
the deliverer (Post, UPS, carrier, etc.). Any subsequent objection
will not be accepted.
2) The purchaser shall be obligated to immediately inspect the
delivered products with respect to obvious defects, which shall
attract the attention of an average purchaser without much ado.
Obvious defects shall be notified in writing within two weeks after
the delivery. In case of a violation of the obligation for
inspection and notification of defects, the products shall be
considered as approved in consideration of the respective defect.
The obligations for inspection and notification of defects applying
for merchants pursuant to Article 377 German Commercial Code shall
remain unaffected.
3) In case of an existing defect of the product(s) and if the
purchaser may not be considered as an consumer, the Seller shall be
authorized at its own choice for a rectification of the defects or a
replacement delivery.
4) The period of warranty for the new products vis-à-vis (i)
consumers shall amount two years and (ii) purchasers not acting as
consumers shall amount one year from the transfer of the products.
5) The sale of used products vis-à-vis consumers shall include a
period of warranty of one year from the transfer of the products. A
period of warranty shall be excluded vis-à-vis purchasers not acting
as consumers.
6) The legal periods of warranty for claims for damages shall remain
unaffected by the rules and regulations of paragraph 4 and 5.
7) Any repair and interference without authorization as well as
rough handling shall result in the loss of all warranty claims.
Likewise, any warranty claims due to the use of the equipment in
rooms with big humidity, the formation of dust and/or abnormal
temperature and electricity fluctuations shall be excluded, unless
the purchaser may be able to prove that such external circumstances
cannot be the cause of incurred defects.
8) Any warranty in the event of (i) the transfer of a guaranty for
the quality and condition of the products or (ii) fraudulent
concealment of a defect shall remain unaffected by the
above-mentioned rules and regulations. The same shall apply for the
regulations of Articles 478, 479 German Civil Code with respect to
the recourse of the company against the supplier/contractor.
10. Liability
1) With respect to simple negligence for default, warranty of
fitness and title warranty, impossibility of performance as well as
breach of a principal contractual obligation (cardinal obligation),
any liability shall be limited to predictable damages and excluded
for other breaches of the contractual obligations. This shall not be
effective for damages resulting from damages of live, the body or
health. With respect to consequential damages resulting from the use
of the products, any liability shall be excluded.
2) The Seller shall be liable for any gross negligence and intent
without restriction.
3) The limitations of liability pursuant to paragraph 1 shall also
be effective for the benefit of the employees and agents of the
Seller.
11. Returns
With respect to returns, the Seller shall request that the item, or
equipment respectively, shall be sent in or delivered together with
a copy of the invoice, which was delivered together with the
equipment, to the Seller for repair. The exchange of components,
modules or complete equipment shall not result into new periods of
warranty. The liability shall be exclusively restricted to the
repair or exchange of damaged delivery items. In case of the
submission of the equipment for repair, the purchaser shall take
care that any data stored on the media of such equipment, which the
purchaser deems to be relevant, will be stored by means of copies
because such repair might result into loss of such data.
12. Vendor’s Lien / Retention of Title
Any delivered products shall be remain property of the Seller until
the complete payment of the purchase price. The retention of title
is extended. In case the purchaser sells the equipment to third
party, he will inform the third party about the extended retention
of title.
13. Data Protection
The Seller shall be authorized to process any data about the
purchaser received with respect to the business connections or in
connection with such business connections, independent from the
origin of such data, e.g., data originating from the purchaser
itself or third parties, within the meaning of the German Data
Protection Act.
14. Miscellaneous
The place of jurisdiction shall be Frankfurt am Main. These Terms
and Conditions shall be governed in accordance with the law of the
Federal Republic of Germany.
If any provision of these Terms and Conditions or the agreement
concluded with the purchaser shall be invalid in whole or in part,
the effectiveness of the agreement shall remain unaffected.
These terms and conditions are translated from the german version
into english. In case of contradictions between the english and
german language versions, the german language version shall prevail.
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