Terms and Conditions

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General Terms and Conditions of Sale

intec Gesellschaft für Informationstechnik mbH

§ 1 Scope, Form

(1) These General Terms and Conditions of Sale (GTC) apply to all our business relationships with our customers (‘the Customer’). The GTC apply only if the Customer is a trader (Section 14 of the German Civil Code (BGB)), a legal person governed by public law or a special fund under public law.

(2) The GTC apply in particular to contracts for the sale and/or supply of movable goods (“Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 651 of the German Civil Code (BGB)). Unless otherwise agreed, the GTC, in the version valid at the time of the Customer’s order or, in any event, in the version most recently communicated to the Customer in writing, shall also apply as a framework agreement to future contracts of a similar nature, without us having to refer to them again in each individual case.

(3) Our GTC apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the purchaser shall only form part of the contract to the extent that we have expressly agreed to their validity. This requirement for consent applies in all cases, for example even where we carry out the delivery to the customer without reservation whilst being aware of the customer’s General Terms and Conditions.

(4) Individual agreements made with the customer on a case-by-case basis (including ancillary agreements, additions and amendments) shall in all cases take precedence over these General Terms and Conditions. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive as to the content of such agreements.

(5) Legally relevant declarations and notifications by the customer relating to the contract (e.g. setting of a deadline, notice of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, email, fax). Statutory formal requirements and further evidence, in particular where there are doubts as to the legitimacy of the person making the declaration, remain unaffected.

(6) References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply insofar as they are not directly amended or expressly excluded in these General Terms and Conditions.

§ 2 Conclusion of Contract

(1) Our quotations are subject to change and non-binding. This also applies where we have provided the customer with catalogues, technical documentation (e.g. drawings, plans, calculations, cost estimates, references to DIN standards), other product descriptions or documents – including in electronic form – to the customer, in respect of which we reserve ownership rights and copyright.

(2) The purchase order placed by the customer shall be deemed a binding offer to enter into a contract. Unless otherwise stated in the purchase order, we are entitled to accept this offer within 2 weeks of its receipt by us.

(3) Acceptance may be declared either in writing (e.g. by means of an order confirmation) or by delivery of the goods to the customer.

§ 3 Delivery period and delay in delivery

(1) The delivery period shall be agreed individually or specified by us upon acceptance of the order. Unless otherwise specified, the delivery period shall be approximately 2 weeks from the conclusion of the contract.

(2) If we are unable to meet binding delivery times for reasons beyond our control (unavailability of the goods), we shall inform the customer of this without delay and, at the same time, notify them of the expected new delivery time. If the goods are still unavailable within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall refund any payment already made by the customer without delay. In particular, a case of non-availability of the goods in this sense shall be deemed to be a failure by our supplier to deliver to us on time, provided that we have entered into a corresponding hedging transaction, neither we nor our supplier are at fault, or we are not obliged to procure the goods in the specific case.

(3) The occurrence of a delay in delivery on our part shall be determined in accordance with the statutory provisions. In any event, however, a formal notice of default from the customer is required. We reserve the right to prove that the customer has suffered no loss at all or only a loss substantially less than the above-mentioned lump sum.

(4) The purchaser’s rights under § 8 of these General Terms and Conditions 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), remain unaffected.

§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance

(1) Delivery shall be ex-warehouse, which shall also be the place of performance for the delivery and any subsequent performance. At the purchaser’s request and expense, the goods shall be dispatched to another destination (sale by delivery). Unless otherwise agreed, we are entitled to determine the method of dispatch (in particular the carrier, route of dispatch and packaging) ourselves.

(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest upon handover. In the case of a sale by delivery, however, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, passes to the purchaser upon handover of the goods to the forwarding agent, the carrier or any other person or organisation designated to carry out the dispatch. Where acceptance has been agreed, this shall determine the transfer of risk. In all other respects, the statutory provisions of the law governing contracts for work and services shall apply mutatis mutandis to any agreed acceptance. Handover or acceptance shall be deemed to have taken place even if the customer is in default of acceptance.

(3) If the customer is in default of acceptance, fails to cooperate, or if our delivery is delayed for other reasons for which the customer is responsible, we shall be entitled to claim compensation for the resulting loss, including additional expenses (e.g. storage costs). The customer is entitled to prove that we have incurred no loss at all or only a significantly lower loss.

§ 5 Prices and Terms of Payment

(1) Unless otherwise agreed in individual cases, our prices current at the time the contract is concluded shall apply, ex-warehouse, plus statutory value added tax.

(2) In the case of sale by delivery to a place other than the place of performance (§ 4(1)), the customer shall bear the transport costs ex-warehouse and the costs of any transport insurance requested by the customer. Any customs duties, fees, taxes and other public levies shall be borne by the customer.

(3) The purchase price is due and payable within 30 days of the invoice date and delivery or acceptance of the goods. However, we are entitled at any time, even within the context of an ongoing business relationship, to make a delivery, in whole or in part, only against advance payment. We shall declare such a reservation at the latest upon confirmation of the order.

(4) Upon expiry of the above payment period, the customer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory rate for default interest. We reserve the right to claim further damages arising from the delay. Our entitlement to commercial interest on overdue payments (Section 353 of the German Commercial Code (HGB)) remains unaffected in dealings with traders.

(5) The purchaser shall only be entitled to rights of set-off or retention to the extent that their claim has been legally established or is undisputed. In the event of defects in the delivery, the purchaser’s counter-claims, in particular those pursuant to Section 7(6), second sentence, of these General Terms and Conditions, shall remain unaffected.

(6) If, after conclusion of the contract, it becomes apparent (e.g. through an application to open insolvency proceedings) that our claim to the purchase price is at risk due to the customer’s inability to pay, we shall be entitled, in accordance with the statutory provisions, to refuse performance and – where applicable, after setting a deadline – to withdraw from the contract (Section 321 of the German Civil Code (BGB)). In the case of contracts for the manufacture of non-replaceable items (custom-made products), we may declare our withdrawal immediately; the statutory provisions regarding the dispensability of setting a time limit remain unaffected. 

§ 6 Retention of Title

(1) We retain title to the goods sold until all our present and future claims arising from the sales contract and an ongoing business relationship (secured claims) have been paid in full.

(2) The goods subject to retention of title may neither be pledged to third parties nor transferred as security prior to full payment of the secured claims. The purchaser must notify us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. through attachment) seek to seize the goods belonging to us.

(3) In the event of the purchaser’s breach of contract, in particular non-payment of the purchase price when due, we shall be entitled, in accordance with the statutory provisions, to withdraw from the contract and/or to demand the return of the goods on the basis of the retention of title. A demand for the return of the goods does not automatically constitute a declaration of withdrawal; rather, we are entitled merely to demand the return of the goods whilst reserving the right to withdraw from the contract. If the purchaser fails to pay the purchase price due, we may only exercise these rights if we have previously set the purchaser a reasonable deadline for payment without success, or if setting such a deadline is not required under the statutory provisions.

(4) Until further notice in accordance with (c) below, the customer is authorised 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.

(a) The retention of title extends to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed the manufacturer. If, in the event of processing, mixing or combining with goods belonging to third parties, their right of ownership remains in force, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same provisions shall apply to the resulting product as to the goods delivered subject to retention of title.

(b) The customer hereby assigns to us, by way of security, all claims against third parties arising from the resale or subletting of the goods or the resulting product, either in full or to the extent of our share of co-ownership in accordance with the preceding paragraph. We accept the assignment. The obligations of the purchaser set out in paragraph 2 shall also apply in respect of the assigned claims.

(c) The purchaser remains authorised, alongside us, to collect the claim. We undertake not to collect the claim as long as the purchaser meets their payment obligations to us, there is no impairment of their ability to pay, and we do not assert the retention of title by exercising a right in accordance with paragraph 3. Should this, however, be the case, we may demand that the purchaser discloses to us the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and notifies the debtors (third parties) of the assignment. Furthermore, in such a case, we shall be entitled to revoke the purchaser’s authority to resell or process the goods subject to retention of title.

(d) If the realisable value of the security exceeds our claims by more than 10 per cent, we shall, at the purchaser’s request, release security at our discretion.

§ 7 The Purchaser’s Claims for Defects

(1) Unless otherwise specified below, the statutory provisions shall apply to the purchaser’s rights in the event of material defects and defects of title (including incorrect or short deliveries, as well as improper assembly or defective assembly instructions). In all cases, the special statutory provisions regarding the final delivery of unprocessed goods to a consumer remain unaffected, even if the consumer has further processed them (supplier’s right of recourse pursuant to Sections 478 of the German Civil Code (BGB)). Claims arising from supplier recourse are excluded if the defective goods have been further processed by the purchaser or another trader, e.g. by incorporation into another product.

(2) Our liability for defects is based primarily on the agreement reached regarding the quality of the goods. All product descriptions that form part of the individual contract or that have been publicly disclosed by us (in particular in catalogues or on our website) shall be deemed to constitute an agreement regarding the quality of the goods.

(3) Where no agreement has been made regarding the quality, the question of whether a defect exists shall be assessed in accordance with the statutory provisions (Section 434(1), sentences 2 and 3 of the German Civil Code (BGB)). However, we accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising claims).

(4) The purchaser’s claims for defects are subject to their having fulfilled their statutory obligations to inspect the goods and give notice of defects (Sections 377, 381 of the German Commercial Code (HGB)). If a defect becomes apparent upon delivery, during inspection or at any later point in time, we must be notified of this in writing without delay. In any event, obvious defects must be reported in writing within 5 working days of delivery, and defects not detectable upon inspection must be reported in writing within the same period from the date of discovery. If the customer fails to carry out the proper inspection and/or to give notice of defects, our liability for any defect that has not been reported, or has not been reported in good time or in the proper manner, shall be excluded in accordance with the statutory provisions.

(5) If the goods delivered are defective, we may initially choose whether to provide subsequent performance by rectifying the defect (repair) or by delivering goods free from defects (replacement). Our right to refuse subsequent performance under the statutory conditions remains unaffected.

(6) We are entitled to make the required subsequent performance conditional upon the customer paying the purchase price due. The customer is, however, entitled to withhold a portion of the purchase price commensurate with the defect.

(7) The purchaser must allow us the time and opportunity necessary to carry out the required subsequent performance, in particular by handing over the goods subject to complaint for inspection. In the event of a replacement delivery, the purchaser must return the defective goods to us in accordance with the statutory provisions. Subsequent performance shall not include either the removal of the defective item or its re-installation, if we were not originally obliged to carry out the installation.

(8) We shall bear or reimburse the expenses necessary for the purposes of inspection and subsequent performance – in particular transport, travel, labour and material costs, as well as, where applicable, removal and re-installation costs – in accordance with the statutory provisions, provided that a defect actually exists. Otherwise, we may demand reimbursement from the customer for the costs incurred as a result of the unjustified request for rectification of the defect (in particular inspection and transport costs), unless the absence of a defect was not apparent to the customer.

(9) In urgent cases, e.g. where operational safety is at risk or to prevent disproportionate damage, the customer shall be entitled to remedy the defect themselves and to demand reimbursement from us for the expenses objectively necessary for this purpose. We must be notified of any such self-remedy without delay, and where possible in advance. The right to self-remedy shall not apply if we would be entitled to refuse corresponding subsequent performance in accordance with statutory provisions.

(10) If the subsequent performance has failed, or if a reasonable period to be set by the purchaser for subsequent performance has expired without success or is dispensable under the statutory provisions, the purchaser may withdraw from the contract of sale or reduce the purchase price. However, there is no right of withdrawal in the case of a minor defect.

(11) If the use of the goods supplied results in an infringement of industrial property rights or copyright within Germany, we shall, at our own expense, in principle secure for the purchaser the right to continue using the goods or modify the goods in a manner reasonable for the purchaser so that the infringement of industrial property rights no longer exists. If this is not possible on economically reasonable terms or within a reasonable period, the customer shall be entitled to withdraw from the contract. Furthermore, we shall indemnify the customer against any uncontested or legally established claims by the relevant intellectual property rights holders. Subject to the provisions of § 8, our obligations in this regard are exhaustive in the event of an infringement of industrial property rights or copyright.

(12) The Customer’s claims for damages or reimbursement of futile expenditure, even in the event of defects, shall only arise in accordance with § 8 and are otherwise excluded.

(13) Accessories such as rechargeable batteries, batteries, power supplies, cables or adaptors are excluded from any warranty.

(14) Where warranty claims are made, these must be substantiated at the time the device is handed in by presenting the warranty card and the purchase invoice. Warranty repairs are carried out at our business premises.

§ 8 Other Liability

(1) Unless otherwise provided for in these General Terms and Conditions, including the following provisions, we shall be liable for any breach of contractual and non-contractual obligations in accordance with statutory provisions.

(2) We shall be liable for damages – irrespective of the legal basis – within the scope of fault-based liability in cases of wilful misconduct and gross negligence. In cases of simple negligence, subject to a less stringent standard of liability under statutory provisions (e.g. regarding the standard of care required in one’s own affairs), we shall only be liable

a) for damage resulting from injury to life, limb or health,

b) for damage resulting from a material breach of a fundamental contractual obligation (an obligation the fulfilment of which is essential for the proper performance of the contract and on the observance of which the contracting party regularly relies and is entitled to rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.

(3) The limitations of liability arising from paragraph 2 shall also apply in the event of breaches of duty by or in favour of persons for whose fault we are liable under statutory provisions. They shall not apply where we have fraudulently concealed a defect or have given a guarantee as to the quality of the goods, nor shall they apply to claims by the purchaser under the Product Liability Act.

(4) In the event of a breach of duty which does not consist of a defect, the customer may only withdraw from the contract or terminate it if we are responsible for the breach of duty. Any unrestricted right of the customer to terminate the contract (in particular pursuant to Sections 651 and 649 of the German Civil Code (BGB)) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

§ 9 Use of Software

Insofar as software is included in the scope of delivery, the purchaser is granted a non-exclusive right to use the delivered software, including its documentation. It is provided for use on the item of delivery for which it is intended. Use of the software on any other system is prohibited. The customer may only reproduce, adapt, translate and convert the software from object code to source code to the extent permitted by law (Sections 69a et seq. of the Copyright Act). The customer undertakes not to remove the manufacturer’s details – in particular copyright notices – or to alter them without our prior express consent. All other rights to the software and the documentation, including copies, remain with us or our software supplier. The granting of sub-licences is not permitted.

§ 10 Limitation Period

(1) Notwithstanding Section 438(1)(3) of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Where acceptance has been agreed, the limitation period shall commence upon acceptance.

(2) The above limitation periods under sales law also apply to the Purchaser’s contractual and non-contractual claims for damages arising from a defect in the goods, unless the application of the standard statutory limitation period (Sections 195, 199 of the German Civil Code (BGB)) would result in a shorter limitation period in the individual case. However, the purchaser’s claims for damages pursuant to Section 8(2), first and second sentences (a), and under the Product Liability Act shall be subject exclusively to the statutory limitation periods.

§ 11 Governing Law and Jurisdiction

(1) These General Terms and Conditions and the contractual relationship between us and the customer shall be governed by the law 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.

(2) If the customer is a trader within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal person governed by public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Lüdenscheid. The same applies if the purchaser is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB). However, in all cases we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions of Business or any overriding individual agreement, or at the purchaser’s general place of jurisdiction. Overriding statutory provisions, in particular those relating to exclusive jurisdiction, remain unaffected.