§ 1 SCOPE
(1) All deliveries, services and offers of bb-net media GmbH – hereinafter referred to as the „seller“ – based on orders from contractual partners – hereinafter referred to as the „customer“ – are made exclusively on the basis of these general terms and conditions. These general terms and conditions are an integral part of all contracts that the seller concludes with its customers regarding the deliveries and services it offers. These general terms and conditions shall also apply to all future deliveries, services or offers to the customer, even if they are not separately agreed again.
(2) Unless otherwise stated, the seller’s product offer is used goods, not a newly manufactured item within the meaning of the German Civil Code (BGB). Condition and scope of delivery can be found in the product descriptions. Unless otherwise agreed, all products offered shall be delivered without software and accessories.
The seller’s product range is directed exclusively at entrepreneurs within the meaning of § 14 BGB (German Civil Code). According to this, an entrepreneur is a natural or legal person or a partnership with legal capacity that acts in the exercise of its commercial or independent professional activity when concluding the contract.
(3) Terms and conditions of the customer or third parties shall not apply, even if the vendor does not separately object to their validity in individual cases. Even if the seller refers to letters, e-mails, faxes, which contain or refer to the terms and conditions of the customer or a third party, this does not constitute an agreement with the validity of such terms and conditions. Conflicting terms and conditions shall only apply if their validity has been expressly agreed to in writing by the seller.
§ 2 OFFER AND CONCLUSION OF CONTRACT
(1) All offers of the seller are subject to confirmation and non-binding.
(2) When placing an order with the seller, the customer makes a binding offer to the seller to purchase the (desired) product. The customer shall be bound to the seller’s offer until the end of the seventh working day following the day on which the seller receives the offer.
(3) The seller shall not be deemed to have accepted the customer’s offer until the seller has declared acceptance to the customer or has dispatched the ordered goods.
(4) The customer shall receive an automatic notification of the order placed. Such a notification does not constitute a binding acceptance of the order, unless it also declares acceptance in addition to confirmation of receipt.
§ 3 PRICES AND PAYMENT
(1) All prices quoted by the seller are in EURO plus the applicable statutory value added tax, insurance costs, transaction fees, packaging and shipping costs at the time of the order. Customs duties and similar levies as well as other public, private levies and licence fees shall be borne by the Customer.
(2) Depending on the agreement between the customer and the seller, payments shall be made by prepayment, Sepa debit, invoice or PayPal.
(3) If a delivery on credit has been agreed to, the payment is due for the seller immediately after receipt of the goods and the invoice by the customer.
(4) The customer is not entitled to any right of set-off or retention unless the counterclaim is undisputed or legally established.
(5) Invoice amounts, if the customer has received the invoice before delivery of the goods, are to be paid within 30 days without any deduction, unless otherwise agreed in writing (also by fax and e-mail). The date of receipt of payment by the seller shall be decisive for the date of payment. If the customer does not pay on the due date, the outstanding amounts shall bear interest from the due date at 8 percentage points p.a. above the respective base interest rate; the assertion of higher interest rates and further damages in the event of default shall remain unaffected.
(6) The vendor shall be entitled to execute or render outstanding deliveries or services only against advance payment or provision of security, if circumstances become known to it after the order of the contract which are suited to significantly reduce the creditworthiness of the customer and which endanger the payment of the outstanding claims of the vendor by the customer from the respective (pre-)contractual relationship.
§ 4 TERMS OF DELIVERY
(1) Deliveries shall be made ex seller’s warehouse (EXW Incoterms®2010) in Schweinfurt or ex warehouse of a subcontractor.
(2) The availability of the goods and their time of delivery shall be determined by the seller’s respective details. The periods and dates promised there by the vendor for deliveries and services shall always be approximate unless a fixed period or date has been expressly promised or agreed. If shipment has been agreed, the delivery periods and delivery dates shall refer to the time when the goods are handed over to the forwarding agent, carrier or other third party commissioned with the transport.
(3) Irrespective of its rights arising from the delay, the seller may demand from the customer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period in which the customer does not fulfil its contractual obligations towards the seller.
(4) The vendor shall not be liable for any impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract, in particular operational disruptions of any kind, difficulties in procuring materials or energy, delays in transport, strikes, late or incorrect delivery by the Supplier for which the Vendor is not responsible. Insofar as such events make the delivery or service of the seller considerably more difficult or impossible and the hindrance is not only of a temporary nature, the seller shall be entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery and performance periods shall be extended or the delivery or performance dates postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration (also by fax and e-mail) to the seller.
(5) If the seller is in default with a delivery or service or if a delivery or service becomes impossible for the seller for whatever reason, the seller’s liability shall be limited to damages in accordance with § 8 of these General terms and conditions.
§ 5 PLACE OF PERFORMANCE, DISPATCH, PACKAGING, TRANSFER OF RISK
(1) Place of performance for all obligations arising from the contractual relationship is Schweinfurt, unless otherwise specified.
(2) The mode of dispatch and packaging are subject to the dutiful discretion of the seller.
(3) The risk shall pass to the customer at the latest when the delivered goods are handed over to the forwarding agent, carrier or other third party appointed to carry out the shipment. If dispatch or delivery is delayed as a result of circumstances for which the customer is responsible, the risk shall pass to the customer from the day on which the delivered goods are ready for dispatch and the seller has notified the customer of this. The costs of storage shall be borne by the customer. Insofar as the dispatch of the ordered goods has been agreed, the customer shall bear the risk of loss or deterioration even if the ordered goods are dispatched directly to the customer from the warehouse of a subcontractor in accordance with the customers instructions.
§ 6 RETENTION OF TITLE
(1) The seller shall retain title to the goods delivered by it until full payment of the purchase price (including value added tax and shipping costs) for the relevant goods has been made.
(2) If the delivered goods are processed or transformed by the customer, it is agreed that the processing, the transformation of the delivered goods shall take place in the name and on the account of the seller and that the seller directly acquires the ownership or – if the processing takes place from materials of several owners or the value of the processed item is higher than the value of the delivered goods – a corresponding co-ownership share in the newly created item.
(3) In the event that the delivered goods are resold, the customer hereby assigns the resulting claims against third parties to the seller by way of security.
(4) If third parties have access to the delivered goods, in particular by seizure, the customer shall immediately inform them of the seller’s ownership and inform the seller thereof in order to enable them to enforce their ownership rights. If the third party is not in a position to reimburse the Seller for the costs thereby incurred, the seller’s customer shall be liable for such costs.
§ 7 WARRANTY
(1) The warranty period for newly manufactured goods is 12 months. The warranty period shall commence upon delivery or, if acceptance is required, upon acceptance. The warranty does not apply to used goods, so-called used IT and processed used goods with the tecXL seal; our separate warranty conditions apply here.
(2) The warranty does not apply if the customer changes the delivered goods or has them changed by third parties without the consent of the seller and the removal of defects is thereby made impossible or unreasonably difficult. In any case, the customer shall bear the additional costs of remedying the defect resulting from the change.
(3) The warranty does not apply to unchecked, untested or defective goods.
§ 8 LIABILITY
(1) The seller’s liability for damages, irrespective of the legal basis, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties in contract negotiations and tortious acts, shall be limited in accordance with this paragraph, insofar as this depends on fault.
(2) The seller shall not be liable in the event of simple negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents, provided that this is not a breach of essential contractual obligations. Essential to the contract are the obligation to deliver goods free of essential defects in good time as well as the obligation to provide advice, protection and care, which shall enable the customer to use the delivered goods in accordance with the contract and serve to protect the life and limb of the customer’s personnel or to protect the customer’s property from considerable damage.
(3) Insofar as the Seller is liable for damages on the merits pursuant to § 8 (2), this liability shall be limited to damages which the Seller foresaw as a possible consequence of a breach of contract when concluding the contract or which it should have foreseen if it had exercised due care. Indirect damage and consequential damage resulting from defects in the goods supplied shall only be eligible for compensation if such damage can typically be expected when the goods supplied are used in accordance with their intended purpose.
(4) The limitations of § 8 do not apply to the liability of the seller for intentional behaviour, for guaranteed characteristics, for injury to life, body or health or according to the Product Liability Act (ProdukthaftG).
§ 9 RIGHTS OF RESCISSION
(1) If the customer refuses to accept the goods, the seller shall be entitled to withdraw from the purchase contract and demand compensation from the customer.
(2) If the seller demands compensations for damages, this shall amount to a flat rate of 15% of the sales price. The damages shall be set lower if the customer proves that lower damage occurred. The customer has the possibility to prove that the seller has not suffered any damage at all. If the Seller proves a higher damage, it may also demand a higher damage.
§ 10 FINAL PROVISIONS
(1) The place of jurisdiction for all possible disputes arising from the business relationship between the seller and the customer shall be Schweinfurt or the registered office of the customer at the discretion of the seller. Schweinfurt shall be the exclusive place of jurisdiction for legal actions against the Seller. Mandatory legal provisions on exclusive places of jurisdiction remain unaffected by this provision.
(2) The relations between the seller and the customer are subject exclusively to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
(3) The remaining parts of the contract shall remain binding even if individual points are legally invalid. The ineffective points shall be replaced, if any, by the statutory provisions. Insofar as this would represent an unreasonable hardship for a contracting party, the contract as a whole shall, however, become invalid.