General Terms and Conditions of Business of Communicate Consult GmbH
These terms and conditions of sale and delivery apply to all business relationships, including future ones. In particular, they apply to deliveries, services, and other legal transactions between us and our customers. Deviating and supplemental agreements, as well as agreements made verbally or by telephone, are only binding if they are confirmed by us in writing. We hereby object to the buyer’s terms and conditions of purchase. These shall not be recognized even if we do not expressly object to them again after receiving them. The invalidity of individual contractual clauses shall not affect the validity of the entire contract.
Our offers are always subject to change. The information contained in brochures, price lists, catalogs, circulars, and other printed materials or in the documents related to the offer, such as illustrations, descriptions, technical data, and performance descriptions in particular, is non-binding. No liability is assumed for the correctness of technical data and other information in manufacturer’s brochures. The above is subject to technical change. Any deviations shall be accepted accordingly insofar as they are reasonable for the customer.
- Order confirmation
For us, an order becomes effective with a written order confirmation. Verbal side agreements are invalid. If there is a corresponding delivery option, the order confirmation can also be sent together with the invoice. Objections to the order confirmation are permitted if they are submitted within one week of receipt. Objections must be made in writing. In the event of a price increase between the contract date and the agreed delivery date, we are entitled to make a corresponding price adjustment if the period between the contract conclusion and the agreed delivery date is longer than 4 months.
- Prices and payment terms
Our prices are net shipping costs from the point of dispatch. Payments must be made at the latest during the agreed term of payment after the invoice date, or partial payments must be made by agreement. In the event of default of payment, we will charge the bank interest which we ourselves are charged by our financial institution, plus default interest of 10%. The right to assert more extensive claims for damage caused by default is reserved. The customer is not entitled to any right of retention in respect of our claims to payment. A set-off is only permissible with a counterclaim which is undisputed by us or has been established with legal and binding effect.
(1) General. Delivery takes place ex stock at the expense and risk of the customer. If free delivery to the customer’s address has been agreed, the transfer of risk is unaffected. The delivery must be checked immediately upon receipt for completeness, damage, and freedom from defects.
(2) Delivery dates and delivery periods. Delivery dates will be observed as far as possible, but they are non-binding for us. The execution of orders placed is subject to timely and sufficient delivery by our upstream suppliers. Should a delivery date confirmed by us in writing be exceeded by more than 5 weeks, you may revoke the contract. Further claims arising from such a delay in delivery cannot be asserted. In the event of “force majeure”, labor disputes, official measures, and other unforeseeable impairments beyond our reasonable control—regardless of whether these occur in our company or at a supplier’s premises—such as business disruptions, official interventions, delays in the delivery of goods and components, or other incorrect or untimely deliveries by our upstream suppliers, we shall be released from the delivery obligation for the duration of their effects, and fully released from the obligation in the event of impossibility of performance. If delivery subsequently becomes impossible or unreasonable as a result of the above events, we shall be entitled to withdraw from the contract.
- Dispatch – transfer of risk
The dispatch takes place at the risk of the buyer. In the event of delivery and assembly by us, the risk shall pass to the buyer. If the dispatch is delayed due to an instruction of the buyer, the risk shall pass to the buyer as soon as the goods are ready for dispatch. In this case, we are entitled to charge the storage fees, which amount to at least 0.5% of the invoice amount per month. In this case, the purchase price or other remuneration shall become due when the goods are ready for dispatch.
- Notice of defects and liability for defects
(1) The customer’s warranty rights shall require that it has properly fulfilled its examination and notification of defects obligations in accordance with Section 377 of the German Commercial Code (Handelsgesetzbuch, HGB).
(2) Deficiency claims expire 12 months after the customer has received the goods we delivered (note: the warranty period can be completely excluded for the sale of used goods). The above provisions shall not apply to the extent that the law pursuant to Section 438 (1) no. 2 BGB (buildings and things used for buildings), Section 479 (1) BGB (recourse claims), and Section 634a (1) BGB (building defects) prescribes longer periods. Our consent must be obtained before any goods are returned.
(3) If, despite all due care taken, the delivered goods exhibit a defect which already existed at the time of transfer of risk, we shall, at our discretion and subject to timely notification of the defect, either repair the goods or deliver replacement goods. We must always be given the opportunity to carry out the cure within a reasonable period of time. Recourse claims remain unaffected by the above regulation without restriction.
(4) If the cure fails, the customer may—notwithstanding any claims for damages—revoke the contract or reduce the remuneration.
(5) Deficiency claims shall not exist in the event of insignificant deviations from the agreed quality, insignificant impairment of utility, natural wear and tear such as damage arising after the transfer of risk as a result of faulty or negligent handling, excessive strain, unsuitable equipment, defective construction work, unsuitable building ground, or due to special external influences not provided for in the contract. If improper repair work or modifications are carried out by the customer or third parties, no deficiency claims shall exist for this or the resulting consequences.
(6) Claims asserted by the customer in respect of the costs associated with the cure, in particular transport, traveling, work, and material costs, are excluded unless they are asserted because the goods delivered by us were transferred to another place than the customer’s premises after delivery, unless the transfer is in conformity with their use for the intended purpose.
(7) The customer shall only have recourse claims against us to the extent that the customer has not entered into any agreements with its own buyer that go beyond the legally mandatory deficiency claims. Clause 6 shall also apply mutatis mutandis to the scope of the customer’s recourse claims against the supplier.
(8) In order to assert a warranty claim, it is necessary to send or deliver the defective parts, an exact description of the defect indicating the model and serial number, and a copy of the original delivery note included with the device to us as a matter of principle. Improper use, storage, and handling of devices, as well as unauthorized interventions and the opening of devices, will void the warranty claim.
(9) Should data on the devices to be repaired be lost during our repair efforts, this risk shall be borne by the customer. 8. Industrial property rights. Unless otherwise agreed, we assume no liability for any infringement on the industrial property rights of third parties by the goods delivered by us. The customer is obligated to inform us immediately if it is notified of such infringements. If the delivered goods have been built based on the designs or instructions of the customer, the customer shall indemnify us against all claims of industrial property right infringement asserted by third parties. Any legal costs must be advanced appropriately.
- Retention of title
(1) We retain the title to the delivered item until full payment of all claims arising from the delivery contract. This shall also apply to all future deliveries, even if we do not always expressly refer to the retention of title. We are entitled to take back the purchased item if the customer behaves contrary to the terms of the contract.
(2) The customer is obligated to treat the purchased item with care as long as the title has not yet been transferred to it. In particular, it shall be obligated to insure it adequately at its own expense against theft, fire, and water damage at replacement value (note: only permitted for the sale of high-quality goods). If maintenance and inspection work has to be carried out, the customer must carry this out in good time at its own expense. As long as the title has not yet been transferred, the customer must inform us immediately in writing if the delivered item is seized or subjected to other interventions by third parties. If the third party is not able to reimburse us for the judicial and extrajudicial costs of an action pursuant to Section 771 of the German Code of Civil Procedure (Zivilprüfungsordnung, ZPO), the customer shall be liable for the loss we incur.
(3) The customer is entitled to resell the goods sold subject to retention of title in the normal course of business. The customer hereby assigns to us the customer’s claims to payment arising from the resale of the goods sold subject to retention of title in the amount of the final invoice amount agreed with us (including value-added tax). This assignment shall apply regardless of whether the purchased item was resold without or after processing. The customer remains authorized to collect the claim to payment even after the assignment. Our authorization to collect the claim to payment ourselves shall remain unaffected thereby. However, we shall not collect the claim to payment as long as the customer fulfills its payment obligations from the proceeds received, is not in default of payment, and in particular as long as no petition has been filed for the opening of bankruptcy proceedings and the customer has not discontinued its payments.
- Miscellaneous provisions
The exclusive place of jurisdiction for all disputes arising from or in connection with these terms and conditions is Dachau. Should any provision of these terms and conditions be or become invalid or contain gaps, the remaining provisions shall not be affected hereby.
As at December 1, 2017
Commercial Register Munich HRB no. 114045
Managing director: Heinrich Raudies