General Terms and Conditions of Sale of INKUBIT Business Solutions GmbH
§ 1 General
These Terms and Conditions of Sale of INKUBIT Business Solutions GmbH (hereinafter: INKUBIT) shall apply exclusively; any terms and conditions of the Purchaser that conflict with or deviate from these Terms and Conditions of Sale shall not be recognized unless express written consent to their validity is given. These General Terms and Conditions of Sale shall also apply if the delivery to the customer is carried out without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from these Terms and Conditions of Sale. These General Terms and Conditions of Sale apply to all current and future orders for deliveries and other services. All agreements made between INKUBIT and the customer for the purpose of executing this contract must be set out in writing in this contract. Orders placed verbally or by telephone therefore require subsequent written confirmation by INKUBIT in order to be legally valid. These General Terms and Conditions of Sale only apply to companies in accordance with § 310 Para. 1 BGB (German Civil Code). The contract language is German. The German version of these Terms and Conditions of Sale is authoritative. Any English version is for information purposes only.
§ 2 Offer - offer documents
Offers from INKUBIT are subject to change and non-binding. A contract is only concluded when INKUBIT confirms an order from the customer in writing or by telex. If the order is to be qualified as an offer according to § 145 BGB, INKUBIT can accept this within two weeks. INKUBIT reserves its property and copyright rights of use and exploitation of cost estimates, drawings and other documents (hereinafter: documents) without restriction. The documents may only be made accessible to third parties with the prior consent of INKUBIT and must be returned to INKUBIT immediately upon request if the order INKUBIT is not placed. Sentences 1 and 2 apply accordingly to the customer's documents; however, these may be made accessible to third parties to whom INKUBIT has permissibly transferred deliveries. If the customer does not fulfill his payment obligations by being more than one month in arrears with a payment, INKUBIT is entitled to terminate the contract immediately without special prior notice. In addition, outstanding payments for services already rendered can be made due immediately in one amount. The same applies if INKUBIT becomes aware of other circumstances that call into question the creditworthiness of the customer. From the time of default, INKUBIT is entitled to charge interest in the amount of the interest rate charged by commercial banks for open overdrafts, but at least the applicable statutory default interest rate.
§ 3 Prices - Terms of payment
Unless otherwise stated in the order confirmation, the net purchase price (without deduction) is due for payment within 14 days of the invoice date. The statutory rules regarding the consequences of default of payment shall apply. The customer shall only be entitled to set-off, retention or reduction rights if his counterclaims have been legally established, are undisputed or have been recognized by INKUBIT . In addition, the customer shall only be entitled to assert a right of retention if the counterclaim arises from the same contractual relationship.
§ 4 Terms of delivery - Delivery time
Compliance with deadlines for deliveries requires the timely receipt of all documents, supplies or other approvals and releases required for the execution of the order, in particular of plans, as well as compliance with the agreed terms of payment and other obligations by the customer. If these requirements are not met in good time, the deadlines shall be extended accordingly; this shall not apply if INKUBIT is responsible for the delay. All delivery obligations are subject to our own timely delivery. If non-compliance with the deadlines is due to
a) force majeure, e.g. mobilization, war, acts of terrorism, riots, pandemics or similar events (e.g. strike, lockout),
b) virus and other attacks by third parties on the IT system of INKUBIT, insofar as these occur despite the usual care taken with protective measures,
c) obstacles due to German, US-American and other applicable national, EU or international regulations of foreign trade law or due to other circumstances for which INKUBIT is not responsible, or
d) late or improper delivery to INKUBIT, the deadlines shall be extended accordingly.
If INKUBIT is in default, the customer may, if he can credibly demonstrate that he has suffered damage as a result, demand compensation for each completed week of delay of 0.5%, but not more than a total of 5% of the price for the part of the deliveries which could not be used for the intended purpose due to the delay. Both claims for damages by the customer due to delayed delivery and claims for damages in lieu of performance that exceed the limits specified in No. 3 are excluded in all cases of delayed delivery, even after expiry of any deadline set for delivery to INKUBIT . This shall not apply in cases of willful intent, gross negligence or injury to life, body or health. The customer may only withdraw from the contract within the framework of the statutory provisions if INKUBIT is responsible for the delay in delivery. A change in the burden of proof to the disadvantage of the purchaser is not associated with the above provisions.
§ 5 Transfer of risk
The risk is transferred to the customer when the goods are made available for collection or download. The goods must be accepted after they have been made available. Delivery dates shall be adhered to wherever possible and are non-binding. The goods have the agreed quality at the time of transfer of risk and are suitable for the contractually stipulated use or, in the absence of an agreement, for normal use. It satisfies the criterion of practical suitability and has the usual quality for software of this type; however, it is not error-free. A functional impairment of the program resulting from hardware defects, environmental conditions, incorrect operation or similar is not a defect.
§ 6 Software/Data
Insofar as programs are included in the scope of delivery, the manufacturer's license conditions pertaining to the program shall also apply to the customer, who hereby expressly accepts this. In case of doubt, the customer only has a non-exclusive and non-transferable right of use, which may also be limited in time. Within networks, the licenses are only valid for the previously contractually agreed number of system workstations; in the absence of an agreement on this, the license is only valid for one system workstation. In the event of a breach of these rights of use, the customer shall be liable in the amount of the usual remuneration. If the customer has commissioned INKUBIT to carry out installations, maintenance or configurations on his PCs or peripheral devices, he must ensure proper data backup. INKUBIT is not liable for loss of data. The customer is aware of the fact that data loss can occur when placing the order or accepting the GTC. The data backup can also be carried out by INKUBIT ; for this, the customer must explicitly instruct INKUBIT .
§ 7 Microsoft Cloud Agreement (MCA)
In the event that INKUBIT provides the Customer with Microsoft Online Services licenses, acceptance of the Microsoft Cloud Agreement (MCA) and acceptance of the existing Customer Invitation URL is required. The MCA can be found at the following URL (German version): https://download.microsoft.com/download/2/C/8/2C8CAC17-FCE7-4F51-9556-4D77C7022DF5/MCA2017Agr_EMEA_EU-EFTA_GER_Sep20172_CR.pdf§ 8 Liability for defects: The customer may not refuse to accept deliveries due to insignificant defects. Claims for defects on the part of the purchaser presuppose that he has properly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code). INKUBIT shall be liable for material defects as follows: At the discretion of INKUBIT , all parts or services with a material defect shall be repaired, replaced or provided again free of charge, provided that the cause of the defect already existed at the time of the transfer of risk.(3) Claims for supplementary performance shall expire 12 months after the transfer of risk; the same shall apply to withdrawal and reduction. This period shall not apply if the law prescribes longer periods in accordance with §§ 438 Para. 1 No. 2 (buildings and items for buildings), 479 Para. 1 (right of recourse) or 634a Para. 1 No. 2 (building defects) BGB, in the event of intent, fraudulent concealment of the defect and non-compliance with a quality guarantee. The purchaser's claims for reimbursement of expenses in accordance with § 445a BGB (recourse of the seller) also expire 12 months after the transfer of risk, provided that the last contract in the supply chain is not a purchase of consumer goods. The statutory provisions on suspension of expiry, suspension and recommencement of the periods shall remain unaffected. Notification of defects by the customer must be made immediately in writing. In the event of a complaint, the customer is obliged to send the defective device or part at his own expense and risk to INKUBIT in the original packaging, together with a precise description of the fault, details of the model and serial number and a copy of the delivery bill or invoice with which the goods were delivered. Replaced parts become the property of INKUBIT . In the event of claims for defects, payments by the customer may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The purchaser has no right of retention if his claims for defects are time-barred. If the notice of defects is unjustified, INKUBIT shall be entitled to demand reimbursement of the expenses incurred from the customer. If the third supplementary performance fails, the customer may withdraw from the contract or reduce the remuneration, without prejudice to any claims for damages under No. 9. Claims for defects shall not exist in the event of only insignificant deviations from the agreed quality, only insignificant impairment of usability or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive use, unsuitable operating materials or due to special external influences which are not provided for in the contract.(8) If operating or maintenance recommendations of INKUBIT are not followed, changes are made to the goods, parts are replaced or consumables are used which do not correspond to the original specification, any warranty shall lapse. The warranty claim is also void if the serial number, type designation or similar is removed or made illegible, or if device seals, warranty seals or similar are damaged. Claims for damages by the customer due to a material defect are excluded. This shall not apply in the event of fraudulent concealment of the defect, non-compliance with a guarantee of quality, injury to life, limb or health and in the event of an intentional or grossly negligent breach of duty by INKUBIT. A change in the burden of proof to the detriment of the customer is not associated with the above provisions. Further or other than in this
Any claims of the Purchaser based on a material defect governed by § 8 shall be excluded.
(10) The assignment of warranty claims to third parties is excluded. If the customer sells the items delivered by INKUBIT to third parties, the customer is only permitted with the consent of INKUBIT to refer to INKUBIT for the associated statutory and/or contractual warranty claims. In other cases, INKUBIT shall only be liable - insofar as otherwise regulated in the above provisions - in the event of a breach of a contractual obligation, the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the customer may regularly rely (so-called cardinal obligation), limited to compensation for foreseeable and typical damage. Liability for compensation for loss of profit is excluded.
§ 9 Retention of title
The objects of the deliveries (reserved goods) remain the property of INKUBIT until all claims to which it is entitled against the customer from the business relationship have been fulfilled. Insofar as the value of all security interests to which INKUBIT is entitled exceeds the amount of all secured claims by more than 20%, INKUBIT shall release a corresponding part of the security interests at the request of the customer; INKUBIT shall be entitled to choose between different security interests for the release. During the existence of the retention of title, the customer is prohibited from pledging or transferring ownership by way of security and resale is only permitted to resellers in the ordinary course of business and only under the condition that the reseller receives payment from his customer or makes the reservation that ownership is only transferred to the customer when he has fulfilled his payment obligations. If the purchaser resells goods subject to retention of title, he hereby assigns his future claims from the resale against his customers with all ancillary rights, including any balance claims, to INKUBIT by way of security, without the need for further special declarations. If the goods subject to retention of title are resold together with other items without an individual price having been agreed for the goods subject to retention of title, the customer shall assign that part of the total price claim to INKUBIT which corresponds to the price of the goods subject to retention of title invoiced by INKUBIT . Until revocation, the purchaser is authorized to collect assigned claims from the resale. In the event of an important reason, in particular default of payment, suspension of payment, opening of insolvency proceedings, protest of a bill of exchange or justified indications of over-indebtedness or imminent insolvency of the purchaser, INKUBIT is entitled to revoke the collection authorization of the purchaser. In addition, INKUBIT may, after prior warning and subject to a reasonable period of notice, disclose the assignment of security, realize the assigned claims and demand disclosure of the assignment of security by the customer to the customer.(5) In the event of seizure, confiscation or other dispositions or interventions by third parties, the customer must notify INKUBIT immediately. If a legitimate interest can be substantiated, the purchaser must immediately provide INKUBIT with the information required to assert his rights against the purchaser and hand over the necessary documents. In the event of breaches of duty by the customer, in particular in the event of default of payment, INKUBIT is entitled to withdraw from the contract in addition to taking back the goods after a reasonable deadline set for the customer has expired without result; the statutory provisions on the dispensability of setting a deadline remain unaffected. The customer is obliged to surrender the goods. The taking back or assertion of the retention of title or the seizure of the reserved goods byINKUBIT shall not constitute a withdrawal from the contract, unless INKUBIT has expressly declared this.
§ 10 Other Claims for Damages - Contractual Adjustment
(1) If delivery is impossible, the customer shall be entitled to claim damages unless INKUBIT is not responsible for the impossibility. However, in the event of impossibility, the customer's claim for damages shall be limited to 10% of the value of the items that cannot be delivered due to the impossibility. This limitation shall not apply in cases of liability based on intent, gross negligence or injury to life, body or health; this does not imply a change in the burden of proof to the disadvantage of the customer. The customer's right to withdraw from the contract shall remain unaffected.(2) If events within the meaning of § 4 No. 2 a) to c) significantly change the economic significance or the content of the delivery or have a significant effect on the operation of INKUBIT , the contract shall be adapted appropriately in good faith. Insofar as this is not economically justifiable, INKUBIT shall be entitled to withdraw from the contract. The same applies if required export licenses are not granted or cannot be used. If INKUBIT wishes to make use of this right of withdrawal, INKUBIT must inform the customer immediately after recognizing the consequences of the event, even if an extension of the delivery time was initially agreed with the customer.(3) Unless otherwise regulated in these terms and conditions of sale, claims for damages by the customer, regardless of the legal basis, in particular from negligence in the conclusion of the contract, due to breach of duties arising from the contractual obligation and from tort, are excluded. This shall not apply if INKUBIT is liable under the Product Liability Act, in the event of intent, gross negligence on the part of owners, legal representatives or executive employees, fraudulent intent, failure to comply with an assumed guarantee or due to the culpable breach of a material contractual obligation.(4) Compensation for damages in the event of a breach of a material contractual obligation shall be limited to the foreseeable damage typical for the contract, unless another of the aforementioned cases in No. 3 applies. A change in the burden of proof to the detriment of the customer is not associated with the above provisions. Insofar as liability for damages against INKUBIT is excluded or limited, this shall also apply with regard to personal liability for damages against employees, workers, staff, representatives and vicarious agents of INKUBIT.
§ 11 Data protection
(1) INKUBIT is entitled to process the data about the customer received in connection with the business relationship or in connection with this relationship, regardless of whether this data originates from the customer itself or from third parties, in accordance with the Federal Data Protection Act. This notice replaces the notification in accordance with the Federal Data Protection Act that personal data about the customer is stored and processed by means of EDP. Further information on the use of the data can be found in our data protection declaration.(2) After successful completion of the project, the customer agrees to authorize a presentation of the customer reference on the website of www.inkubit.com including a backlink to the customer website. Only information about the project or the customer approved by the customer will be published. As part of reference marketing, both parties benefit from this customer reference by increasing the level of awareness and reputation of the customer in his role as an expert.
§ 12 Place of Jurisdiction - Applicable Law - Place of Performance
(1) If the customer is a merchant, the place of jurisdiction is the registered office of INKUBIT ; however, INKUBIT is also entitled to sue the customer at his place of business.(2) The law of the Federal Republic of Germany applies. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.(3) Unless otherwise stated in the order confirmation, the place of performance is the registered office of INKUBIT .
§ 13 Binding nature of the contract
The contract shall remain binding in its remaining parts even if individual provisions are legally ineffective. This shall not apply if adherence to the contract would represent an unreasonable hardship for one of the parties.