Conditions of Use

General Terms and Conditions

As of 17.07.2018
 
1. Validity of the General Terms and Conditions (17.07.2018)
 
These General Terms and Conditions of Business and Delivery apply to all contracts concluded between Käfer IT Systeme e.K.. - Thomas Käfer (hereinafter referred to as the "Company") and the Client as well as all other agreements made within the scope of the business relationship. The Client's General Terms and Conditions shall explicitly not become part of the contract, even if they are not explicitly contradicted by the Company. In the event that the Client does not wish to accept the following General Terms and Conditions of business and delivery, it must notify the Company of this in writing in advance.
 
2. Payment Terms and Prices
 
All of the Company’s invoices are payable immediately without deduction, unless a special payment term or discount has been granted. The date of receipt of payment by the Company is decisive. In the event of default, the Company shall be entitled to withhold further deliveries and services. If the Client is in default of payment, the Company shall be entitled to charge reminder fees and interest at a rate of 5% above the base interest rate applicable at the time. In the event of default in payment by the Client, the Company shall be entitled, at its discretion, to withdraw from the contract or to claim damages. The prices stated in the order confirmation/order plus the statutory value added tax shall be decisive.
 
This price does not include a discount or other reductions ex warehouse Elchenrather Weide - Würselen. The Company is entitled to make partial deliveries.
 
If the Client explicitly requests a binding cost estimate for repairs or service calls, this will be invoiced at 10% of the order value in the event of rejection by the Client.
 
In the case of service and repair work to be invoiced on site, the travel time for arrival and departure will always be invoiced as working time. In addition to the travel time, the actual distance travelled shall billed on the basis of kilometres travelled. Price details can be found in the currently valid price list or in the underlying offers and order confirmations.
 
3. Delivery and Shipping
 
All offers are subject to change, non-binding and have a validity of 14 days, unless otherwise stated. Delivery only while stocks last. Drawings, illustrations, weights and dimensions are non-binding unless otherwise agreed. The written order confirmation/written order shall be decisive for our delivery obligation.
 
All delivery dates stated by the Company are non-binding delivery dates, unless a delivery date is explicitly agreed in writing to be binding. If the Client requests changes or additions to the order after it has been placed, the delivery date shall be postponed by a reasonable period of time. If non-compliance with a binding delivery date is demonstrably due to mobilisation, war, riot, strike, lockout or other circumstances for which the Company is not responsible, the delivery date shall be postponed for the duration of the hindrance. If the delivery becomes impossible due to circumstances for which the Company is not responsible, the Company is entitled to withdraw from the contract.
 
If a binding delivery date is exceeded by more than two weeks, the Client may set the Company a reasonable grace period (not less than two weeks) for delivery by means of a declaration.
 
If the Company does not comply with the grace period, the Client shall be entitled to withdraw from the contract with regard to the part not yet fulfilled. If the partial performance is unusable or worthless for the Client due to the unfulfilled part of the contract, the Client may withdraw from the entire contract.
 
If the Company or the Client withdraws from the contract in accordance with the two preceding paragraphs, claims for damages are excluded unless the Company has acted intentionally or with gross negligence. All cancellations and extensions must be made in writing.
 
Unless otherwise agreed, the costs of shipping and transport insurance shall be borne by the Client, whereby the choice of shipping route and method shall be at the Company's discretion. The Client is obliged to inspect the goods immediately upon arrival and to report any visible transport damage as well as any damage to the packaging to the company in writing without delay. The same applies to hidden damage. If the Company loses its claims against the insurance company or the subcontractor due to the omission of this obligation, the Client shall be liable for all costs resulting from this breach of obligation. The risk is transferred to the Client as soon as the goods leave the factory or the warehouse of the company. In the case of returns arriving freight collect, the company may refuse to accept them.
 
4. Acceptance
 
The Client has the obligation to inspect and accept the object of purchase at the agreed place of acceptance within 8 days after receipt of the notification of readiness. If the Client is in arrears with the acceptance of the object of purchase for more than 8 days from the receipt of the notification of readiness or delivery, the Company may set a grace period of 8 days in writing with the declaration that it will refuse acceptance after the expiry of the grace period. After unsuccessful expiry of the grace period, the Company shall be entitled to withdraw from the contract by written declaration or to claim damages for non-performance. It is not necessary to set a grace period if the Client seriously and finally refuses acceptance or is obviously unable to pay the purchase price even within the grace period. If the company demands compensation for damages, this shall amount to 25% of the purchase price. The Company may claim a higher amount of damages if it proves that it has incurred higher damages. If the Client proves that the Company has incurred lower damages or no damages at all, the Client shall pay the lower damages or shall be released from the obligation to pay damages. This regulation also applies in the event of cancellation or withdrawal on the part of the Client.
 

5. Retention of Title
 
The delivered goods remain the property of the Company until full payment of all claims of the Company arising from the business relationship with the Client in the main and in the secondary matter. The Client is obliged to properly insure the items under the Company's retention of title (i.e. theft, fire, water and low-voltage insurance) and to provide the Company with evidence of such insurance upon request. If claims for compensation arise for damage, destruction or theft of the delivered goods, the Client shall assign these claims to the company upon conclusion of the contract. The Client is not authorised to dispose of the items subject to retention of title. In the event of seizure or attachment, the Client shall immediately notify the Company in writing and shall immediately inform third parties of the Company's retention of title in a suitable form. The Client shall bear the costs of measures to remove interferences by third parties. In the event that the Client nevertheless sells the delivery items and the Company should approve this, the Client shall assign to the Company all claims against its customers already upon conclusion of the contract.
 
The Client shall be obliged to provide the Company with all information required to assert these rights and to perform the necessary acts of cooperation. If the Client is in default of payment or otherwise fails to meet its obligations under the retention of title, the Company may, after issuing a reminder and setting a reasonable deadline, demand that the Client surrender the object of purchase. Taking back the object of purchase does not constitute a withdrawal from the contract. If insolvency proceedings are instituted against the Client, the goods subject to retention of title must be identified and segregated immediately. The company must be informed immediately.
 
6. Limitation of Liability
 
The company is liable for intent and gross negligence in accordance with the statutory provisions. In the event of slight negligence, the Company shall only be liable if an essential contractual obligation (cardinal obligation) is violated or a case of delay or impossibility exists. In the event of liability arising from slight negligence, this liability shall be limited to such damages as are foreseeable or typical. Liability for the absence of guaranteed characteristics, for fraudulent intent, for personal injury, defects of title, under the Product Liability Act and the Federal Data Protection Act shall remain unaffected. In the event of a claim against the Company under warranty or liability, contributory negligence on the part of the Client shall be taken into account appropriately, in particular in the event of insufficient error messages or insufficient data backup. Inadequate data backup shall be deemed to exist in particular if the Client has failed to take precautions against external influences, in particular against computer viruses and other phenomena that may endanger individual data or an entire data stock, by means of current and appropriate state-of-the-art security measures. The Client must ensure that the data backups are up-to-date and complete before any necessary service work is carried out. The company is not liable for data loss due to service calls or due to hardware defects. The recovery of the operating system and data (e.g. in the event of hard disk damage) is not covered by the hardware warranty and will be invoiced separately, unless this service has been covered by a corresponding service package.
 
In the case of response times guaranteed in service contracts, an error message will be accepted and processed during our usual office hours Mon.-Fri. from 8:30 am to 4:30 pm. In this context, the promised response time is not synonymous with error correction time.
 
7. Hardware Warranty
 
The Company warrants that the goods are not defective in any way that would remove or diminish their value or fitness for their ordinary use or use as required by the contract. The Company and the Client agree that statements and descriptions of both hardware and software contained in offers, supplementary documents to offers, manuals and/or in other sales information do not constitute a warranty of certain properties. The warranty period is twelve months and begins on the day of delivery. If the Client is a consumer within the meaning of the German Civil Code, the warranty period shall be two years. The Client shall immediately notify the Company in writing of any defects occurring during the warranty period. The warranty does not cover the elimination of defects caused by normal wear and tear, external influences or operating errors. Thermal conductive foils or pastes between the processor and processor fan are subject to natural ageing due to the high temperatures of fast processors. Therefore, these as well as the fans themselves and subsequent failures due to failure or damage to aforementioned parts due to natural wear or contamination are not covered by the warranty. Also excluded from the warranty is damage caused by dirt and abrasion, e.g.: in tape drives, network part fans, magnetic or/and optical storage devices such as CDROM, floppy disk drives etc.. The warranty shall not apply if the Client modifies devices, elements or additional equipment itself or has them modified by third parties without the consent of the Company, unless the Client provides full proof that the defects still in question have not been caused either in whole or in part by such modifications and that the rectification of defects is not impeded by the modification.  If the notice of defects proves to be justified, the Client shall set the Company a reasonable deadline for subsequent performance. The Client shall inform the Company which type of subsequent performance - elimination of the defect or delivery of a new, defect-free item - it desires. However, the Company shall be entitled to refuse the chosen supplementary performance if this can only be carried out at disproportionate cost to the Company. In this case, the Client's claim shall be limited to the other type of subsequent performance; the Company's right to also refuse this due to disproportionate costs shall remain unaffected. The Company shall be entitled to two attempts within the period set by the Client to carry out subsequent performance for the same or directly related defect. After the second failed attempt at subsequent performance, the Client may withdraw from the contract or reduce the purchase price. The right of withdrawal or reduction may already be exercised after the first unsuccessful attempt at subsequent performance if a second attempt within the set period is unreasonable for the Client. If subsequent performance has been refused under the conditions set out above, the Client shall be entitled to the right of reduction or withdrawal immediately. In the event of conversion, the Company shall be entitled to an appropriate claim for remuneration for the previous use of the item. Withdrawal due to an insignificant defect is excluded. Unless explicitly agreed by corresponding on-site warranty commitments at the time of purchase, the Client shall bear the costs of sending the goods in the event of a warranty claim or the travel costs in the event of an on-site service call requested by the Client without a corresponding contract. The place of performance for warranty services without on-site warranty is the company's registered office. If the Client has made a warranty claim against the Company and it turns out that either there is no defect or the claimed defect does not oblige the Company to provide a warranty, the Client shall compensate the Company for all expenses incurred by the Company. With regard to the calculation of on-site service costs, reference is made to Article 3 para. 2. The delivery of an operating manual in English is permissible if the subject matter of the contract has not yet been fully localised for the respective market. The same applies if the subject matter of the contract is generally only available in English.
 
8. Warranty for Individually Created Software
 
The Client shall inspect the software immediately upon delivery and notify the Company of any obvious errors in writing without delay. The Company warrants for a period of twelve months from the date of delivery that the software will substantially conform in its operation to the program description in the accompanying written material. If the Client is a consumer within the meaning of the German Civil Code, the warranty period shall be two years. If a defect occurs, the defect and its manifestation must be described as precisely as possible in a written notice of defect (e.g. by submitting an error message and specifying the work steps) so that the Company can localise the defect and rule out an operating error. If the notice of defects proves to be justified, the Client shall set the Company a reasonable deadline for subsequent performance. The Client shall inform the Company which type of subsequent performance - elimination of the defect or delivery of a new, defect-free item - it desires. However, the Company shall be entitled to refuse the chosen supplementary performance if this can only be carried out at disproportionate cost to the Company.  In this case, the Client's claim shall be limited to the other type of subsequent performance; the Company's right to also refuse this due to disproportionate costs shall remain unaffected.
 
The Company shall be entitled to two attempts within the period set by the Client to carry out subsequent performance for the same or directly related defect. After the second failed attempt at subsequent performance, the Client may withdraw from the contract or reduce the purchase price. The right of withdrawal or reduction may already be exercised after the first unsuccessful attempt at subsequent performance if a second attempt within the set period is unreasonable for the Client. If subsequent performance has been refused under the conditions set out above, the Client shall be entitled to the right of reduction or withdrawal immediately. Withdrawal due to an insignificant defect is excluded.
 
If the Client has made a warranty claim against the Company and it turns out that either there is no defect or the claimed defect does not oblige the Company to provide a warranty, the Client shall compensate the Company for all expenses incurred by it. With regard to the calculation of on-site service costs, reference is made to Article 3 para. 2. No liability is assumed for the software being suitable for the Client's purposes or for it working together with software available at the user's (compatibility), unless an explicit assurance is given. The delivery of manuals and documentation beyond the written material/program description delivered with the software and the user guidance and/or online help implemented in the software, or instruction, shall only be owed if this has been explicitly agreed in writing between the parties. In the event of such an explicit agreement, requirements as to the content, language and scope of a manual and/or documentation to be explicitly supplied shall not be made and the supply of a short manual shall be sufficient unless the parties have agreed in writing on further specifications. The delivery of an operating manual in English is permissible if the subject matter of the contract has not yet been fully localised for the respective market. The same applies if the subject matter of the contract is generally only available in English.
 
9. Confidentiality
 
The Company and the Client mutually undertake to keep all business and trade secrets of the other party confidential for an unlimited period of time and not to disclose them to third parties or to exploit them in any way. The documents, drawings and other information which the other contractual partner receives on the basis of the business relationship may only be used by the latter within the scope of the respective purpose of the contract.

10. Evidence Clause
 
Data stored in electronic registers or otherwise in electronic form at the Company shall be considered admissible evidence for proving data transfers, contracts and payments made between the parties.
 
11. Property Rights
 
Without the explicit permission of the Company, the Client is not allowed to export the goods purchased from the Company to countries outside the EU.
 
In addition, the Client shall comply with all relevant export regulations, in particular those under the German Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung) and, where applicable, regulations under US law.
 
12. Export
 
The Client acknowledges that the resale of any products imported from the United States is subject to United States export control regulations that restrict the export and re-importation of hardware, software, technical media, and direct products of technical media, including services related to the use of such products.
 
The Client agrees that it will not export or re-export, directly or indirectly, any products imported from the U.S. or any information or documentation related thereto to any country or end user without first obtaining the necessary consent from the appropriate authority. Approval is required from the U.S. Department of Commerce, Division of Export Administration or equivalent. The same applies to all uses on the part of the end user that are restricted by U.S. regulations. These provisions refer in particular to countries for which restrictions apply: Cuba, Haiti, rump Yugoslavia (Serbia and Montenegro), Iran, Iraq, North Korea, Syria, and Vietnam. End users to whom restrictions apply: any end user that the Client knows or has reasonable grounds to suspect that the products imported from the U.S. will be used in the design, development, or production of missiles or used in missile technology, in connection with nuclear weapons, or in chemical and biological weapons; end users to whom restrictions apply: any use of products imported from the U.S. in connection with the design, development, or production of missiles or missile technology, in connection with nuclear weapons or weapons technology, or for chemical and biological weapons.
 
13. Registration Obligation according to the German Electrical and Electronic Equipment Act (ElektroG) (applies when applying the GTC with suppliers and manufacturers)
 
Insofar as our order contains products within the meaning of the ElektroG, our supplier shall ensure that these are registered with the competent body (Stiftung EAR). The supplier is obliged to inform us of his registration number (or that of the distributor). If there is any doubt as to the proper registration of the electrical or electronic equipment, we must be notified immediately prior to order acceptance/delivery. In the case of products within the scope of the ElektroG which are not registered or where there is doubt as to whether they are properly registered, we shall refuse to accept them.
 
14. Online Dispute Resolution and Alternative Dispute Resolution in Consumer Matters (German Act on Alternative Dispute Resolution in Consumer Matter (VSGB):
 
After the conclusion of the contract the following applies: Any trader who has a dispute with a consumer about a contract and is unable to resolve the dispute must inform the consumer of a consumer arbitration board that is competent for him, including details of its address and website. We declare our willingness to participate in alternative dispute resolution in consumer matters in accordance with the VSBG.
 
On the website of the Federal Office of Justice you will find further links to recognised consumer arbitration bodies as well as to the online dispute resolution platform of the European Union with an updated list of possible arbitration bodies.
 
Links https://www.bundesjustizamt.de/DE/Themen/Buergerdienste/Verbraucherschutz/Verbraucherstreitbeilegung/Verbraucherschlichtungsstellen/Uebersicht_node.html
 
https://webgate.ec.europa.eu/odr/main/index.cfm?event=main.home.show&lng=DE
 
15. Other
 
Should individual provisions of these General Terms and Conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. Rather, the invalid provisions shall be replaced by the provision that comes closest to the intended purpose. No ancillary agreements have been made. Supplements to the contract shall only be effective if they are confirmed in writing. The Client may assign its rights arising from a business relationship with the Company only with the written consent of the Company. The Client shall only be entitled to offset the purchase price claim against counterclaims that have been acknowledged or have become res judicata. To the extent permitted by law, the place of jurisdiction shall be the registered office in Würselen. German law shall apply exclusively.
 
As of 17.07.2018