1.) General terms and conditions
Our deliveries, services and offers are exclusively based on our terms and conditions. These therefore also apply to all future business relations, even if they are not expressly agreed again. These terms and conditions shall be deemed accepted at the latest upon receipt of the goods or services. Counter-confirmations of the buyer with reference to his terms and conditions of business or purchase are hereby contradicted. This shall also apply in the event that these are transmitted by means of a letter of confirmation. All agreements made between us and the purchaser for the purpose of executing this contract must be set out in writing in this contract. Our offers are subject to change and non-binding. Declarations of acceptance and all orders must be confirmed by us in writing or by telex in order to be legally effective. Drawings, illustrations, dimensions, weights or other performance data are only binding if this is expressly agreed in writing. Our sales employees are not authorized to make verbal collateral agreements or give verbal assurances that go beyond the content of the written contract. AlphaContec shall draw the attention of the buyer to the shipping and logistics costs incurred prior to the conclusion of the contract, insofar as these costs are to be borne by the customer.
2.) Delivery periods and deadlines
Delivery dates or periods, which can be agreed upon binding or non-binding, must be in writing. We shall not be responsible for delays in delivery and performance due to force majeure and due to events which make delivery considerably more difficult or impossible for us - these include in particular strikes, lock-outs, official orders etc., even if they occur at our suppliers or their subcontractors, even if binding deadlines and dates have been agreed. They entitle us to postpone the delivery or service by the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part with regard to the part not yet fulfilled. If the hindrance lasts longer than three months, the buyer is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled. If the delivery time is extended or if we are released from our obligation, the buyer cannot derive any claims for damages from this. We can only refer to the circumstances mentioned if we have informed the buyer immediately. If we are responsible for the non-observance of bindingly promised periods and deadlines or if we are in default, the buyer shall be entitled to compensation for default in the amount of 0.5% for each completed week of the default, however, not exceeding a total of 5% of the invoice value of the deliveries and services affected by the default. Any further claims are excluded, unless the delay is due to at least gross negligence on our part. We are entitled to make partial deliveries and render partial services at any time. Compliance with our delivery and service obligations requires the timely and proper fulfilment of the buyer's obligations. If the buyer is in default of acceptance, we shall be entitled to demand compensation for the damage incurred by us; the risk of accidental deterioration and accidental loss shall pass to the buyer upon the occurrence of default of acceptance. The risk shall pass to the buyer as soon as the consignment has been handed over to the person carrying out the transport or has left our warehouse for the purpose of shipment. If shipment becomes impossible through no fault of our own, the risk shall pass to the buyer upon notification of readiness for shipment. At the written request of the customer, we will insure the delivery on his behalf and for his account.
3.) Right of withdrawal and return
The customer has a right of revocation according to § 361a BGB. The revocation period is 2 weeks and begins on the day of receipt of the goods by the recipient or, in the case of recurring deliveries of similar goods, on the day of receipt of the first partial delivery. For services, the period begins on the day of the conclusion of the contract. A revocation does not require a reason. The timely dispatch of the revocation or return of the goods to AlphaContec shall be sufficient to comply with the time limit. The right of revocation shall not apply to contracts
• for the delivery of goods, which are manufactured according to customer specifications or clearly
which are tailored to personal needs or which are not suitable for return shipment due to their nature,
• for the delivery of audio or video recordings or of software, provided that the delivered
data carriers have been unsealed by the consumer,
- for the delivery of newspapers, magazines and periodicals,
- which are concluded in the form of auctions (§ 156 BGB).
ALPHACONTEC shall bear the costs of returning the goods from a value of DM 1000.00. The customer shall commission a standard parcel from a customary and recognised transport company or parcel service (Deutsche Post AG).
ALPHACONTEC also grants the customer the right to return the purchased item, notwithstanding the aforementioned right of revocation. This right must be exercised by the customer within 28 days of the invoice date. The right of return is exercised by returning the item. To return the item, it must be unopened, software sealed, in its original packaging and unused. It is sufficient for the customer to send it back in time. The customer's right of withdrawal according to § 7 VerbrKrG is expressly excluded. The customer shall bear the risk for items sent to us until they arrive at our place of business. Unless otherwise agreed or the customer has a claim not to pay for the transport, shipments to us must always be cleared.
4.) Damages and limitation of liability
Claims for damages from positive violation of claims, from culpa in contrahendo and from tort are excluded both against us and against our vicarious agents and assistants, unless there is evidence of wilful intent or gross negligence. This also applies to claims for damages due to non-fulfilment, but only to the extent that compensation is demanded for indirect or consequential damage caused by a defect, unless the liability is based on an assurance intended to protect the purchaser against the risk of such damage. Any liability is limited to the damage foreseeable at the time of conclusion of the contract. In any case, our liability under the Product Liability Act and other claims arising from producer liability shall remain unaffected.
5.) Software delivery
As far as we deliver software, it serves only for the use on the device delivered by us, any transfer to third parties or use on other devices is dependent on the conclusion of a separate license agreement. If the customer violates this provision, he is liable for full compensation.
6.) Security and retention of title
Until the fulfilment of all claims (including all balance claims from current account), which we are entitled to now or in the future against the purchaser for any legal reason, we are granted the following securities, which we will release on request and at our discretion, provided their value exceeds the claims by more than 20% on a sustained basis. The goods remain our property. Processing or transformation shall always be carried out for us as manufacturer, but without any obligation on our part. If our (co-)ownership expires due to combination, it is hereby agreed that the buyer's (co-)ownership of the uniform object shall pass to us in proportion to the value (invoice value). The buyer shall store our (co-)ownership free of charge. Goods to which we are entitled to (co-)ownership are hereinafter referred to as reserved goods. The buyer is entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in default. Pledging or transfer by way of security is not permitted. The purchaser hereby assigns to us in full by way of security all claims arising from resale or any other legal reason (insurance, tort) in respect of the reserved goods (including all balance claims from current account). We revocably authorise him to collect the claims assigned to us on our account in his own name.
This collection authorization can only be revoked if the buyer does not properly meet his payment obligations. In the event of access by third parties to the reserved goods, in particular seizures, the buyer shall draw attention to our ownership and inform us immediately so that we can enforce our ownership rights. Insofar as the third party is not in a position to reimburse us for the court or out-of-court costs incurred in this connection, the buyer shall be liable for these. If the buyer acts in breach of contract - in particular default of payment - we are entitled to take back the goods subject to retention of title or, if necessary, to demand assignment of the buyer's claims for return against third parties. Our taking back or seizure of the reserved goods shall not constitute a withdrawal from the contract.
The warranty period complies with the legal requirements.
The customer shall inspect the goods directly handed over to him by us for obvious defects within 2 weeks. After expiry of this period, the notification of such defects is delayed. If there is a transport damage in a mail order purchase, the damage must be reported to the transport company if there is a risk that the goods themselves have been damaged. The latter will then arrange for the damage to be inspected. We request that notifications of defects during the warranty period in the purchased items which are not transport damage be made on the service accompanying sheet enclosed with the goods in order to be able to make a proper diagnosis on the basis of the possible errors ticked off there. For the assertion of warranty claims the presentation of the invoice or a copy thereof as proof of purchase from us is indispensable. For merchants § 377 ff. applies. HGB APPLIES TO MERCHANTS.
Minor deviations from the object of purchase in terms of quality, colour, form do not constitute a defect, provided that they are customary in trade and are reasonable for the customer. Defects or faults in the delivered goods will be remedied by repair or replacement at our discretion. If we do not succeed in repairing or replacing the goods, the customer can demand a reduction of the purchase price or cancellation of the contract, to the exclusion of all further claims, if we have tried twice in vain to supply the customer with a faultless product. This agreement does not apply, but the legal regulation applies if the product lacks properties which were expressly guaranteed by us beyond the normal product pricing. This provision shall also not apply if, taking into account all circumstances of the individual case, a second attempt to provide the customer with a defect-free product is not reasonable. Binding information as to whether a product can be used for a purpose intended by the customer shall require the conclusion of a consultancy contract to be concluded in writing against special payment.
As a hardware supplier, we do not offer advice on which software can be used on the products we sell, unless it is software sold by us. If a customer wishes to obtain information about the use of his software, this must be made available to us for test purposes prior to conclusion of the purchase contract. Such information is subject to a charge. The customer must expect that different goods delivered by us are not compatible with each other, unless the buyer has purchased several products recognizable to us in order to use them in combination. If a customer wishes to clarify whether goods purchased by him can be used with certain third-party accessories or with certain third-party programs, this information can only be provided within the framework of a consultancy contract for which a fee is charged. Interventions by the customer or a third party commissioned by the customer during the warranty and guarantee period in goods delivered by us must be explained by the customer without being asked when asserting the claims in a way that is comprehensible for us. If the customer breaches this obligation, our warranty or guarantee obligation shall be suspended if the customer's breach of duty means that the obligations incumbent on us can only be fulfilled under considerably more difficult conditions.
Each customer must ensure that all programs and data used by him are completely backed up every day of use. In the event of warranty claims, the customer shall make the goods available to us for inspection at our business premises. With regard to transport costs in the event of rectification work, the customer shall bear the transport costs within the scope of § 476 a BGB. If the customer sets us a deadline for the completion of rectification work, this deadline must be at least two weeks, unless it is a case of below-average simplicity. The period is calculated from the receipt of a detailed error description and the goods in our business premises. In order to carry out warranty work, the goods complained about must be made available to us without data or software not acquired by us and without other additional equipment not acquired by us, with a comprehensible description of the error, as is reasonable for the customer. The above conditions also apply analogously to warranty and service work outside the statutory warranty period. The handling of warranty claims that are not or insufficiently described or of unjustified warranty claims shall be carried out at the usual flat rates charged by us for this purpose. Unless otherwise stated, the statutory value added tax is to be paid additionally on the prices quoted. The purchase price and the delivery costs are to be paid free of charge upon receipt of the delivery. This also applies to partial deliveries. In the event of default of payment, interest of 1% per month shall be payable; the right to claim further damages shall be reserved.
8.) Payment periods and dates, offsetting
Unless otherwise agreed, our invoices are payable immediately after the invoice is issued without deduction. We are entitled, despite any provisions of the buyer to the contrary, to first set off payments against the buyer's older debt and will inform the buyer of the type of set-off made. If costs and interest have already been incurred, we shall be entitled to set off the payment first against the costs, then against the interest and finally against the main service. A payment shall only be deemed to have been made when we can dispose of the amount. In the case of payment by cheque, payment shall only be deemed to have been made when the cheque is cashed. According to § 284 para. 3 BGB (German Civil Code), the buyer shall be in default 30 days after the due date and receipt of an invoice or an equivalent request for payment.
In the case of debt relationships involving recurring cash payments, § 284 para. 2 BGB remains unaffected. In the event of default, we are entitled to demand interest from the relevant point in time at a rate of 4% above the respective discount rate of the German Federal Bank in accordance with § 288 Para. 1 BGB as compensation for damages. The proof of a higher damage by us is permissible.
If we become aware of circumstances which call the creditworthiness of the purchaser into question, in particular if the purchaser does not honour a cheque or suspends payments, or if we become aware of other circumstances which call the creditworthiness of the purchaser into question, we shall be entitled to declare the entire remaining debt due, even if we have accepted cheques. In this case we are also entitled to demand advance payments or the provision of security. Even if notices of defects or counterclaims are asserted, the buyer is only entitled to offset, withhold or reduce payment if the counterclaims have been legally established or are undisputed. However, the buyer is also entitled to retention due to counterclaims from the same contractual relationship.
9.) Software and literature
In the case of the delivery of software, the special license or other conditions of the manufacturer apply in addition to these conditions. Insofar as software is part of the scope of delivery, it is provided to the customer solely for one-time resale, i.e. the customer may not copy it for use by third parties or make it available for use by third parties.
10.) Written form
Amendments and supplements to the provisions contained in these General Terms and Conditions must be made in writing and included in the purchase contract in order to be effective. Oral or written supplementary agreements are only binding for Sauermann EST after written confirmation or confirmation by email.
11.) Data protection, applicable law, place of jurisdiction, severability clause
AlphaContec shall be entitled to electronically store and further process the data provided to it by the Client. Deletion of the data requires the written form. ALPHACONTEC shall then be entitled to pass on customer data resulting from the contract documents or which is necessary for the execution of the contract to third parties, in particular to credit institutions and contractual partners, if this serves the purpose of order processing.
ALPHACONTEC will observe the applicable data protection regulations. These Terms and Conditions of Business and the entire legal relationship between us and the Buyer shall be governed by the laws of the Federal Republic of Germany.
The validity of the uniform international sales law (UNCITRAL agreement) is excluded. Insofar as the Buyer is a registered trader within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, Berlin shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. Should a provision in these terms and conditions or a provision within the framework of other agreements be or become invalid, the validity of all other provisions or agreements shall not be affected.