General Terms and Conditions
(Status: 28 August 2013)
1 The following conditions apply to each order. Other conditions are only binding if acknowledged by us in writing.
2 Our written confirmation is required for orders and verbal agreements.
3 Our offers are not binding, unless they are expressly stated as such by us. Quotations are not binding. Rates are listed net ex works, exclusive of packaging.
4 We reserve the right of a proportionate change in prices when changes in material prices, labour costs and/or exchange rates for imported goods occur after conclusion of the contract.
5 If an order is cancelled by the customer or client, which itself requires our consent, the actually incurred costs, but at least 25% of the net order value, are to be paid.
6 We reserve our exclusive rights and claims for all designs, blueprints, photos, drawings, tables, diagrams, and all other fabrication documents that are sent or shown to the purchaser or future purchaser of our goods. Without our expressly written consent such designs, tracing papers, photos, drawings, tables, diagrams and fabrication documents are not allowed to be shown, revealed or otherwise disclosed to any third party. Following our request, they shall be returned to us at any time.
1. We endeavour to meet the delivery and performance deadlines; however, we remain entitled to extend these deadlines appropriately, especially if temporal shifts should arise, e.g. during clarification with the customer prior to the order or during the order processing. Information about delivery times refers to the departure of the goods from the factory or the notification of readiness; unless expressly stated otherwise, it is not binding.
2. Force majeure and other events not caused by us which might threaten the smooth processing of the order, in particular delays in our suppliers’ deliveries, transport and equipment failures, labour disputes, materials and energy shortages shall entitle us to postpone or completely or partially withdraw from the contract without the customer deriving any claims. This even applies if the above events occur at a time in which we are in default.
3. We are permitted to perform partial deliveries under the conditions of the entire order. Partial invoices are permitted.
4. In terms of maintenance work, we are also entitled to rectify defects which only become apparent during the operation. Instead of performing the repair work we may provide all or part of other equivalent items in exchange. Spare parts shall not be returned.
5. Even without informing the customer we are entitled to have maintenance or service work orders processed by other companies.
1. Shipping is performed at the expense and risk of the customer. Unless otherwise instructed, we are allowed to organise transport insurance by ourselves.
2. We work together with major transport companies according to market conditions, but assume no responsibility for the cheapest shipping.
3. We reserve the right not to perform the shipment from the Place of Performance in terms of Section XII, but from another location chosen by us.
IV. Objections, complaints and acceptances
1. Claims in cases of incomplete or incorrect delivery or complaints about recognizable defects are to be immediately notified in writing and no later than 15 days after receipt of the goods. Other defects must be notified in writing immediately upon discovery. With the complaint of defects, their free of charge remedy must at the same time be demanded.
2. In the absence of timely notice of complaints or defects, the warranty claims are unjustified. With timely notice we are only obliged to perform subsequent deliveries and to ensure the accordance with Section V.
3. A formal acceptance is generally required for services and shall be required from the customer. Acceptance is valid within 10 days from completion, but starting no later than 3 days after commissioning the due performance as completed.
1. We guarantee for the characteristics and accuracy assured in accordance with the relevant state of technology. Changes in the design or specifications that are generally made on a product before delivery do not justify a complaint.
2. The warranty period begins with the dispatch of the goods by us and is basically 6 months – unless otherwise specified by the German legislation. This does not include third party-sourced products with a shorter warranty period such as disk drives (warranty period 90 days), lenses, head gears, etc., which are all subject to the supplier’s warranty terms. No warranty applies to used equipment, unless otherwise agreed in writing.
3. Warranty type
a) The warranty performance will at our discretion be the repair or replacement of the defective product or part. Replaced parts become our property.
b) For repair, the faulty product must be returned to us or a specific product area service centre recognized by us. The cost of the return shipment shall be borne by the customer.
Transport insurance as per III, 1.
4. A claim for cancellation or reduction does not exist unless we are unable to remedy the defect.
5. The warranty is void if the delivery item is modified by a third party or by the installation of third party-originated parts, unless the defect is not in the causal relationship with the change. It is also void when the installation and operation instructions have not been strictly respected.
6. Natural wear and tear and damage caused by improper treatment are not covered by the warranty. Backup to any data storage is the responsibility of the customer. In particular, we are not liable for changes in the condition or operation of our products due to improper storage and climatic or other influences. The warranty does not cover defects based on design flaws or the choice of unsuitable materials if the design or the materials have been prescribed by the customer despite prior warnings.
7. The warranty shall not be extended or renewed due to a replacement or repair.
8. We disclaim all responsibility and in particular claims for any compensation for difficulties arising in terms of intellectual property legislation in selling or using our products or goods sold by us.
Unless otherwise specified by these Terms and Conditions, the customer’s compensation claims, especially those due to a positive breach of contract and faults at the contract conclusion, are excluded to the extent permitted by law.
1. The goods supplied by us may only upon our written consent be exported in a not installed condition in countries other than the common market.
2. In case of violation and in addition to the rights from damage compensation, we are entitled to cancel any pending orders.
VIII. Retention of proprietary rights
1. We retain title to the goods delivered until full payment of all that is due to us from the business relationship and claims still arising, irrespective of the legal reason.
2. The customer is entitled to process our products or their combination with other products in the ordinary course of his/her business operations. In order to secure our claims as described in Paragraph 1 we hold ownership of the objects resulting from processing or combining that which the customer assigns us already. The items from our joint ownership are kept by the customer free of charge. The amount of our joint ownership share is determined by the ratio between the values of our product and of the object resulting from the processing or the connection.
3. For any resale in the ordinary course of business our written consent is required. When granted, this consent expires in the event of a suspension of payments. The customer already agrees to assign to us any claims assigned to him from the resale and ancillary rights. The claims thus assigned serve to secure all claims under Paragraph 1. The customer is entitled to collect the assigned claims as long as this authorisation has not been revoked by us. The right expires without express revocation if the customer stops payments. At our request, the customer shall immediately notify us in writing to whom he/she has sold the goods and which claims have arisen from the sale; he/she shall at his/her expense issue the publicly certified documents governing the assignment of the claim.
4. The customer is not entitled to dispose of any goods in our retention of title or ownership or the claims assigned to us. The customer must immediately inform us of the seizure or other legal impairment of objects that are all or partly belonging to us.
5. We are entitled to demand the return of our goods at any time if the customer is in arrears with payment or his/her financial situation has deteriorated significantly. If we use this right and notwithstanding other mandatory legal provisions, a withdrawal from the contract is only possible if we expressly declare so.
6. Should the value of our existing securities exceed our claims by more than 20%, we shall on the customer’s request release securities chosen by us.
7. Should the retention of title according to the Paragraphs 1 to 6 not be effective in a foreign country, the customer is in turn obliged to participate in all activities, in particular by submitting all declarations required to provide us securities at least equivalent to the retention of title according to the Paragraphs 1 to 6.
IX. Payment conditions
1. Unless otherwise agreed, the customer owes us amounts in euros (EUR) for the goods and services delivered. Amounts in a foreign currency in the form of transfers, cheques, drafts, etc., are credited with the EUR proceeds achieved from the amount in the foreign currency.
2. Payments shall be made in accordance with the agreed terms of payment. In the absence of such agreements, the payment is due no later than 30 days after delivery. For customers outside of Germany, the issuing of an irrevocable, certified, and divisible documentary letter applies, depending on the delivery time, at least 90 days before the agreed delivery date and no later than 30 days after order confirmation, payable in euros at a major bank of the Federal Republic of Germany, as agreed.
3. Payments will be offset against the oldest outstanding invoice.
4. If the customer is in default or his financial situation deteriorates considerably after the conclusion of the contract, we are entitled to demand an immediate cash payment for all claims from the business relationship, even if deferred, as shall occur when bills of exchange or cheques have been accepted. Under the same assumptions we are allowed to ask for an advance payment or security for all current transactions. The rights conferred by §326 Civil Code (BGB) remain unaffected.
5. If the payment deadline is exceeded, default interest at 5% above the base rate of the European Central Bank (ECB) may be charged without prejudice to other rights.
6. MoovIT GmbH is entitled to assign receivables against customers seated in Germany and other countries which belongs to the EU, for refinancing purposes to the abcfinance GmbH, Kamekestr. 2-8 in 50672 Cologne, GERMANY. The buyer will be communicated at the conclusion of the contract whether the demand can be ceased. In this case, payments with guiltfree action can only be given to the abcfinance GmbH. The bank connection will be communicated to the buyer at the contract’s conclusion.It is the material right of the Federal Republic of Germany. The UN agreement over contracts concerning the international purchase of goods (CISG) as well as foreign country rights cannot be applied”
X. Liability in the event of rental equipment
The hirer is liable under the general liability regulations when the equipment is damaged or any other breach of contract is committed by him/her. In particular, the hirer must return the equipment in the same condition as it was obtained. The hirer’s liability extends to the damage-associated costs such as expert fees, impairment losses of rental income, etc.
XI. Billing rates, fees, surcharges etc.
1. Unless otherwise agreed in writing, our calculations and statements are based on the following billing rates.
a) IT & Video Services at €25 per WU. One WU (i.e. Work Unit) corresponds to 10 minutes each.
Daily flat rates
b) IT & Video Service at €980 (including 10 hours)
2. For journeys using our own vehicle the number of kilometres to the site and back will be charged each at €0.89 per employee. For flights and trips by train, the actual expenses and 60% of the rate as described in XI, 1 will be charged per employee.
3. Expenses such as accommodation, transfers to and from hotel, etc. shall be borne by our clients and will be charged according to the actual costs.
4. The regular working time is 8am to 6pm weekdays. Services provided above the normal working hours are surcharged as follows:
Weekdays after 10pm: 50%
Sunday and holidays: 100%
XII. Place of Performance, Place of Jurisdiction, Applicable Law
1. The place of performance and jurisdiction is Cologne, Federal Republic of Germany.
2. We are also entitled to sue in a court that has jurisdiction for the customer’s domicile or offices.
3. In terms of delivery and performance the law of the Federal Republic of Germany shall prevail.