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) apply exclusively; any terms and conditions of the purchaser that conflict with or deviate from these terms and conditions of sale shall not be recognised unless express written consent is given to their validity. These General Terms and Conditions of Sale shall also apply if the delivery to the Purchaser is carried out without reservation in knowledge of the Purchaser’s terms and conditions that 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 execution of this contract must be set out in writing in this contract. Orders placed orally 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 entrepreneurs in accordance with Section 310 (1) of the German Civil Code (BGB). The language of the contract is German. The German version of these Terms of Sale shall prevail. A possible English version is for information 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 of the customer in writing or by telex. If the order qualifies as an offer according to § 145 BGB, INKUBIT can accept it within two weeks. INKUBIT reserves its property and copyright rights of use and exploitation of cost estimates, drawings and other documents (hereinafter referred to as “documents”) without restriction. The documents may only be made available to third parties with the prior consent of INKUBIT and, if the order is not placed with INKUBIT, must be returned to INKUBIT immediately upon request. Sentences 1 and 2 shall apply mutatis mutandis to documents of the purchaser; however, these may be made available to third parties to whom INKUBIT has lawfully transferred supplies. If the customer fails to meet his payment obligations by being in arrears with a payment for more than one month, INKUBIT is entitled to terminate the contract immediately without special prior notice. In addition, outstanding payments for services already provided 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 date of default, INKUBIT shall be entitled to charge interest in the amount of the interest rate charged by the commercial banks for outstanding overdrafts, but at least the applicable statutory default interest rate.
§ 3 Prices – Terms of Payment
Unless otherwise stated in the order confirmation, the purchase price is due for payment net (without deduction) within 14 days from the date of invoice. The legal rules regarding the consequences of late payment apply. The Purchaser shall only be entitled to rights of set-off, retention or reduction if his counterclaims have been legally established, undisputed or acknowledged by INKUBIT. In addition, the customer is only 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 approvals required for the execution of the order, in particular plans, to be delivered by the Purchaser, as well as compliance with the agreed terms of payment and other obligations by the Purchaser. If these conditions are not met in time, the time limits shall be extended appropriately; this does not apply if INKUBIT is responsible for the delay. All delivery obligations are subject to our own timely delivery. If the failure to comply 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 third-party attacks on INKUBIT’s IT system, insofar as these were carried out despite compliance with the usual care for protective measures,c
) obstacles due to German, US and other applicable national, EU or international regulations of foreign trade law or due to other circumstances that INKUBIT are not responsible, or
d) timely or proper delivery to INKUBIT, the deadlines shall be extended appropriately.
If INKUBIT is in default, the Purchaser may, provided that it can credibly demonstrate that it has suffered damage as a result, demand compensation for each completed week of delay of 0.5% in each case, but in total no more than 5% of the price for the part of the deliveries that could not be used for its intended purpose due to the delay. Claims for damages on the part of the Purchaser due to delay in delivery as well as 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 the expiry of any deadline set for delivery by INKUBIT. This does not apply to the extent that liability is incurred in cases of intent, gross negligence or due to injury to life, limb or health. The customer can only withdraw from the contract within the framework of the statutory provisions if the delay in delivery is attributable to INKUBIT. A change in the burden of proof to the detriment of the customer is not associated with the above provisions.
§ 5 Transfer of Risk
The risk passes 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 are adhered to as far as possible and are non-binding. At the time of transfer of risk, the goods have the agreed quality and are suitable for the contractually required use, and 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 kind; However, it is not error-free. A functional impairment of the program resulting from hardware defects, environmental conditions, incorrect operation or the like is not a defect.
§ 6 Software/Data
Insofar as programs are included in the scope of delivery, the manufacturer’s license conditions belonging to the program 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 can 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 valid for only one system workstation. In the event of a violation of these rights of use, the customer shall be liable in the amount of the usual remuneration. If the Purchaser has commissioned INKUBIT to carry out installations, maintenance or configurations on its PCs or peripheral devices, it shall ensure proper data backup. INKUBIT is not liable for data loss. When placing an order or accepting the GTC, the customer is aware that data loss may occur. Data backup can also be done by INKUBIT; the customer must expressly commission INKUBIT for this purpose.
§ 7 Microsoft Cloud Agreement (MCA)
In the event that INKUBIT provides Microsoft Online Services licenses to the customer, 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 customer presuppose that the customer has duly complied with his obligations to inspect and complain under § 377 of the German Commercial Code (HGB). INKUBIT shall be liable for material defects as follows: All those parts or services shall be repaired, redelivered or re-provided free of charge at INKUBIT’s discretion that exhibit a material defect, provided that its cause already existed at the time of the transfer of risk. (3) Claims for subsequent performance shall become statute-barred after 12 months from the transfer of risk; the same applies to withdrawal and reduction. This period does not apply to the extent that the law prescribes longer periods pursuant to §§ 438 (1) no. 2 (buildings and objects for buildings), 479 (1) (right of recourse) or 634a (1) no. 2 (construction defects) of the German Civil Code (BGB), in the case of intent, fraudulent concealment of the defect and non-compliance with a quality guarantee. Claims for reimbursement of expenses by the Purchaser pursuant to Section 445a of the German Civil Code (BGB) (recourse of the Seller) shall also become statute-barred after 12 months from the transfer of risk, provided that the last contract in the supply chain is not a sale of consumer goods. The statutory provisions on suspension of expiry, suspension and new start of time limits shall remain unaffected. Notices of defects by the customer must be made immediately in writing. In the event of a notice of defects, the customer is obliged to send the defective device or part to INKUBIT in its original packaging at its own expense and risk, combined with a precise description of the defect, indication of the model and serial number as well as a copy of the delivery note 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 proportionate to the material defects that have occurred. The purchaser shall not have a right of retention if his claims for defects are time-barred. If the notice of defects was wrongly made, INKUBIT is entitled to demand reimbursement of the expenses incurred from the customer. If the third subsequent performance fails, the customer may withdraw from the contract or reduce the remuneration, without prejudice to any claims for damages no. 9. Claims for defects do not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability or damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable equipment or that is due to special external influences that are not required by the contract. (8) If INKUBIT’s operating or maintenance recommendations are not followed, changes are made to the goods, parts are replaced or consumables are used that do not correspond to the original specification, any warranty is void. The warranty claim also lapses if the serial number, type designation or similar is removed or made illegible or if device seals, warranty seals or the like are violated. Claims for damages by the customer due to a material defect are excluded. This does not apply in the event of fraudulent concealment of the defect, non-compliance with a quality guarantee, injury to life, limb or health and 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. Going further, or other than in this
§ 8 due to a material defect shall be excluded.
(10) The assignment of warranty claims to third parties is excluded. If the Purchaser sells the items supplied by INKUBIT to third parties, the Purchaser is only permitted to refer to INKUBIT for the associated statutory and/or contractual warranty claims with the consent of INKUBIT. In other cases, INKUBIT shall only be liable in the event of a breach of a contractual obligation, the fulfilment of which is essential for the proper execution of the contract and on the fulfilment of which the Purchaser may regularly rely (so-called cardinal obligation), limited to compensation for foreseeable and typical damage. Liability for damages for lost profits is excluded.
§ 9 Retention of Title
The items of the deliveries (goods subject to retention of title) remain the property of INKUBIT until all claims to which it is entitled against the customer from the business relationship have been satisfied. 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 purchaser; INKUBIT has the choice between different security rights when releasing them. During the existence of the retention of title, the customer is prohibited from pledging or transferring title by way of security and the resale is only permitted to resellers in the ordinary course of business and only on the condition that the reseller receives payment from his customer or makes the reservation that ownership is not transferred to the customer until the customer has fulfilled his payment obligations. If the Purchaser resells goods subject to retention of title, he shall assign his future claims from the resale against his customers with all ancillary rights, including any balance claims, to INKUBIT as a precautionary measure, without the need for further special explanations. 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 Purchaser shall assign to INKUBIT that part of the total price claim which corresponds to the price of the goods subject to retention of title invoiced by INKUBIT. Until revoked, the customer is entitled to collect assigned claims from the resale. In the event of good cause, in particular in the event of default of payment, suspension of payment, opening of insolvency proceedings, protest against bills of exchange or reasonable indications of over-indebtedness or imminent insolvency of the Purchaser, INKUBIT shall be entitled to revoke the Purchaser’s authorisation to collect. In addition, INKUBIT may, upon prior threat and within a reasonable period of time, disclose the assignment of security, realize the assigned claims and demand the disclosure of the assignment of security by the customer to the customer. (5) In the event of seizures, seizures or other dispositions or interventions by third parties, the Purchaser shall notify INKUBIT immediately. If a legitimate interest is substantiated, the customer must immediately provide INKUBIT with the information necessary to assert its rights against the customer and hand over the necessary documents. In the event of breaches of duty by the Purchaser, in particular in the event of default of payment, INKUBIT shall be entitled to withdraw from the contract in addition to the withdrawal after the unsuccessful expiry of a reasonable period of time set for the Purchaser; the statutory provisions on the dispensability of setting a time limit remain unaffected. The purchaser is obliged to surrender the goods. In the take-back or the assertion of retention of title or the seizure of the reserved goods by INKUBIT does not constitute a withdrawal from the contract, unless INKUBIT has expressly stated this.
§ 10 Other Claims for Damages – Contract Adjustment
(1) Insofar as delivery is impossible, the Purchaser 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 those items that cannot be delivered due to impossibility. This limitation does not apply to the extent that liability is incurred in cases of intent, gross negligence or due to injury to life, limb or health; this does not involve a change in the burden of proof to the detriment of the customer. The Purchaser’s right to withdraw from the contract remains 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 appropriately adjusted in good faith. If this is not economically justifiable, INKUBIT has the right to withdraw from the contract. The same applies if the necessary export licenses are not issued or cannot be used. If INKUBIT wishes to make use of this right of withdrawal, INKUBIT must inform the customer of this immediately after becoming aware of the significance of the event, even if an extension of the delivery time has initially been agreed with the customer. (3) Unless otherwise provided for in these Terms and Conditions of Sale, claims for damages by the Purchaser, regardless of the legal grounds, in particular due to fault in the conclusion of the contract, due to breach of obligations arising from the contractual relationship and from tort, are excluded. This does not apply to the extent that INKUBIT is liable under the Product Liability Act, in the event of intent, gross negligence on the part of owners, legal representatives or executives, fraudulent intent, non-compliance with a guarantee assumed or due to 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 of 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 vis-à-vis INKUBIT is excluded or limited, this also applies with regard to personal liability for damages vis-à-vis employees, employees, employees, representatives and vicarious agents of INKUBIT.
§ 11 Data protection
(1) INKUBIT is entitled to process the data received about the customer regarding the business relationship or in connection with it, regardless of whether it originates from the customer itself or from third parties, within the meaning of the Federal Data Protection Act. This notice replaces the notification in accordance with the Federal Data Protection Act that personal data about the customer will be stored and further processed by computer. For more information on the use of the data, please see our Privacy Policy. (2) After successful completion of the project, the Purchaser agrees to authorise a display of the customer reference on www.inkubit.com’s website, including a backlink to the client’s website. Only information approved by the customer about the project or the customer is published. In the context of reference marketing, both parties benefit from this customer reference by increasing the level of awareness and reputation of the customer in his or her role as an expert.
§ 12 Place of jurisdiction – Applicable law – Place of performance
(1) If the customer is a merchant, the place of jurisdiction of INKUBIT is the place of business; However, INKUBIT is also entitled to sue the customer at its place of business. (2) The law of the Federal Republic of Germany shall apply. 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, INKUBIT’s place of business shall be the place of performance.
§ 13 Binding nature of the contract
The contract remains binding in its remaining parts even if individual provisions are legally invalid. This does not apply if adherence to the contract would constitute an unreasonable hardship for a party.