General Terms and Conditions of the iTernity GmbH (iTernity) as of 01.01.2006
General Terms and Conditions
The contract partner submits to the following General Terms and Conditions for the entire business relationship. For the entire business relationship iTernity's General Terms and Conditions shall apply exclusively. The contract partner's general terms and conditions are not accepted.
2. Contract Conclusion
2.1 Any offers from iTernity are subject to change, unless explicitly designated as binding. They are particularly subject to iTernity being supplied, to stocks and prior sale.
2.1.1 The contract with iTernity shall come about by written confirmation of the order or by delivery of the goods. Written form (including but not limited to e-mail, fax, and similar) shall be sufficient to meet the requirement of writing.
2.1.2 In relation to non-merchants, for whom Paragraph 305 German Civil Code (BGB) requires the incorporation of these General Terms and Conditions, a written confirmation of an order together with the General Terms and Conditions constitutes a new offer by iTernity. If there is no response within seven days, acceptance of the goods shall be considered to be confirmation of the intent to accept. Receipt of a declaration of acceptance shall be waived, Paragraph 151 German Civil Code (BGB).
2.2 Any errors in telephonic or electronic communication shall be to the detriment of the party that initiated the communication (e.g. the caller or sender).
2.3 iTernity reserves all rights in quotations, charts, drawings, technical descriptions and explanations. They may not be reproduced or brought to the attention of third parties without the prior written consent of iTernity.
2.4 When registering, the customer is under a duty to state true particulars. If customer details change, including but not limited to the customer's name, address, e-mail address, telephone number or bank account details, the customer is under a duty to notify iTernity of said change without undue delay. If the customer fails to provide such information, or if the customer gives false details from the outset, iTernity reserves the right to rescind the contract or to claim damages. Rescission shall be declared in writing. Sending an e-mail shall also be sufficient to meet the requirement of writing. The customer must ensure that the e-mail address, which the customer has given, can be reached at the time when it is given, and that the possibility of receiving e-mail messages is not excluded because of message forwarding or because the e-mail account has been closed or is full (over quota).
3.1 The delivery period shall not commence before the documents, approvals and releases that are necessary in order to implement the contract have been provided and not before any agreed down payment by the customer has been received.
3.2 Any unforeseen impediment to delivery (e.g. labor dispute or iTernity not supplied on time), for which iTernity has no responsibility, shall entitle iTernity to extend the delivery period by the duration of the disruption, up to a maximum of eight weeks.
3.3 In addition iTernity reserves the right to rescind if - despite having concluded a congruent hedging transaction - iTernity is itself not supplied, or is not supplied in time. In the event of any disruption in iTernity's own supplies affecting part of the delivery the following shall apply: iTernity can rescind partial deliveries unless the purchaser proves that the remaining part deliveries are of no interest to him. iTernity is also at liberty to choose to rescind the whole contract unless the purchaser proves that the remaining partial deliveries are of interest to him. This provision shall apply mutatis mutandis in the event of Clause 6.8.
4. Reservation of Title
4.1 The goods shall remain the property of iTernity until payment has been made in full. The reservation of title extends to the satisfaction of all claims arising out of the business relationship and also applies to any claims that arise in future before title has passed. The reserved goods therefore serve as security for the respective balance from time to time. The purchaser assigns his claims arising out of any re-sale, including value added tax, as well as the consideration for the rights and claims that serve as security for the re-sale, to iTernity in advance. In the event of any re-sale with the purchaser's own or third-party property the assignment shall be effected only in the amount of iTernity's purchase price claim.
4.2 The purchaser is authorized to re-sell in the ordinary course of business. The purchaser may neither pledge the item delivered nor transfer ownership thereof by way of security. iTernity must be notified before delivery of any rights of third parties that may affect the reserved goods.
4.3 Any further processing of delivered goods shall, as far as iTernity is concerned, be performed as a refiner without any liabilities thereby accruing for iTernity. In particular, this provision does not constitute a mandate. The reservation of title shall continue in the converted article to the extent described (extended and prolonged).
4.4 The purchaser shall remain entitled to assert debts arising out of re-sale against third parties in his own name. This authorization to collect debts shall lapse when the purchaser is in default.
4.5 The purchaser must notify any access by third parties to the reserved goods, including assigned claims, to iTernity without undue delay. Damage arising out of any breach of this duty to notify, e.g. because of a belated filing or failure to file a third-party action against enforcement, shall be borne by the purchaser.
4.6 iTernity undertakes to release the security as soon as the realisable value thereof exceeds the outstanding debts owed to iTernity by more than 10 %.
5.1 In dealings with non-merchants iTernity shall charge the agreed price provided that the delivery date is not more than four months after placement of the order.
5.2 In dealings with merchants iTernity shall charge the latest list price. The same shall apply in dealings with non-merchants if the delivery date is more than four months after placement of the order. If there is no list price, the price used in advertisements at that time shall apply (cf. Clause 5.3).
5.3 In cases which fall under Clause 5.2, iTernity's contract partners, who are not merchants, shall have a right to cancel if they prove that the average market price on the day of delivery is exceeded by a rate of more than 20 %.
5.4 Price agreements with non-merchants include value added tax; price agreements with merchants do not include value added tax. All prices apply ex warehouse and do not include packaging, carriage or insurance.
5.5 Prices are basically in EUR, even if not additionally stated. In foreign transactions the currency is the currency that was the subject of the contract negotiations.
6.1 Invoices are due immediately upon receipt of the goods.
6.1.1 They must be paid in cash or by bank money (transfer).
6.1.2 A sum credited in a bank transfer or direct debit processes does not mean that payment has been made. Rather, payment is effected only once the credited amount has become final and irrevocable on iTernity's accounts. Until then the retention of title (Clause 4) shall continue to subsist in full. This shall also apply to payments made by bill of exchange or cheque.
6.2 Deductions are not permitted unless they have expressly been agreed with iTernity. It is agreed that any trade practice to the contrary shall not apply. Counterclaims may be offset only if the claim is undisputed.
6.3 Payments received shall be appropriated first to all due claims in the order in which they arose. The contract partner's right to make unilateral stipulations regarding satisfaction is excluded for the entire contractual relationship.
6.4 If a claim under Clauses 6.1 and 6.3 is still outstanding five days after the occurrence of default, iTernity shall charge default interest in the amount of eight percentage points above the base interest rate.
6.5 Default occurs when a dunning notice is given, however, no later than on the 30th day after the due date and receipt of an invoice or equivalent payment demand.
6.6 Notwithstanding Clause 6.4, iTernity may prove that the loss caused by default is greater and the contract partner may prove that the loss caused by default is lower.
6.7 All claims by iTernity shall become due altogether and any deferment of payment granted shall end if one of the following cases occurs: The purchaser is in default with performance of an obligation, if it becomes known that a bill of exchange or cheque is protested (irrespective of whether this is against third parties), the purchaser stops making his payments, is overindebted or insolvency proceedings over his assets are opened or the opening of such proceedings is denied because of a lack of assets.
6.8 In cases that fall under Clause 6.7 iTernity shall have the option between rescission, damages, a right to payment in advance or the provision of appropriate security. Unless otherwise agreed in an individual arrangement, only a bank guarantee will be considered appropriate security.
7. The Bearing of the Risk
7.1 Irrespective of the place of performance, the statutory rules governing sales by delivery to a place other than the place of performance (at the request of the purchaser) (Versendungskauf) shall always apply to deliveries by iTernity. The contract partner shall bear the risk with effect from handover to an appropriate carrier. Any agreement on carriage-paid delivery in the individual case shall not change this.
7.2 Returns are carried at the purchaser's risk, unless the purchaser is exercising a statutory warranty right because of defects.
8. Warranty for Defects
8.1 The limitation period for the statutory warranty for defects in quality (Sachmängel) is limited by iTernity to a period of one year.
8.2 Deliveries must be inspected immediately after receipt. Any manifest defects must be reported without undue delay. In the event of any failure to meet this obligation the warranty for it is excluded.
8.2.1 Damage to the packaging or to the goods delivered must be reported to and confirmed by the carrier. In addition the damage must be reported to iTernity. Damage that is not immediately manifested must be reported without undue delay after discovery.
8.2.2 iTernity must be notified without undue delay after discovery in the event of any failure to delivery, belated delivery, wrong delivery, delivery of too much or too little, or defective delivery. Reference is made to the duty to inspect.
8.2.3 For non-merchants the following shall apply in lieu of the provisions in Clauses 8.2.1 -
8.2.2: Damage in transit must be reported as described above. For all other damage the following applies: Any manifest defects must be reported within seven days. Any hidden defects must be reported within the statutory warranty periods.
8.3 If the purchased goods are defective, iTernity shall have a right of subsequent performance, by, at the purchaser's option, either eliminating the defect or by delivering goods that are free from defects. iTernity can refuse subsequent performance if it involves excessively high costs. Any repair shall be made at iTernity's place of business. Any on site service in derogation from this shall only be carried out on the basis of a separate agreement.
8.4 Any goods intended to be returned must be properly packed. Damage in transit caused because of improper packaging shall also be borne by the purchaser. Only the original packaging shall be deemed to be proper packaging. iTernity shall fulfill its obligation to take back packaging even after expiry of the statutory warranty periods.
8.5 After repair has failed twice or if iTernity refuses subsequent defect rectification, the purchaser can rescind the contract or can reduce the purchase price by declaration to iTernity (price reduction). There shall be no right to damages. By contrast, in the case of mainframe installations the agreed test run time shall be decisive. iTernity's right to repair shall only lapse after the expiry thereof.
9. Duty to Take Back Goods
9.1 Exemption clause
iTernity is exempted by the customer from its duty to take back goods pursuant to Paragraph 10(2) German Act on the Bringing into Circulation, Taking Back and the Environmentally-Friendly Disposal of Electrical and Electronic Equipment (ElektroG). This also applies to associated claims by third parties. When use of the delivered goods has finished, the customer must dispose of them at his own cost in accordance with the statutory provisions.
9.2 Regulation with regard to Drop Shipments
If the customer passes goods delivered by iTernity on to commercial third parties, it is the customer's duty to oblige the commercial third party to properly dispose of the goods in accordance with the statutory obligations and at the third party's cost when the goods are no longer in use. If the goods are passed on again, a corresponding duty must be imposed on the buyer. In the event that third parties, to whom goods delivered by iTernity have been passed on, are not obliged to contractually assume the disposal obligation and to pass said obligation on due to an omission on the part of the customer, the customer shall be under an obligation to take back and properly dispose of the goods delivered by iTernity when the goods are no longer used and to do so at the third-party’s cost and in accordance with the statutory provisions. The customer is under a duty to document the proper passing on of the obligation. He must be able to prove the passing on of the obligation to iTernity at any time.
9.3 Suspension of the Limitation Period
iTernity's right to be exempted by the customer shall not be time-barred before the expiry of two years after use of the equipment has finally ceased. The two-year suspension of the limitation period shall start to run upon receipt by iTernity of a written notification by the customer that use of the equipment has been ceased.
10. Extent of Liability
10.1 iTernity shall only be liable for intent and gross negligence. This also applies to the liability for vicarious agents or other helpers.
10.2 Liability for ordinary negligence (leichte Fahrlässigkeit) and, to the extent permitted by statute, for intermediate negligence (mittlere Fahrlässigkeit) is excluded. This also applies to the liability for vicarious agents or other helpers.
10.3 The liability of iTernity's helpers is limited in accordance with Clauses 10.1 - 10.2.
10.4 The above limitation of liability under Clause 10.1 - 10.3 applies to compensation for damage caused by a defect and to consequential damage caused by a defect, irrespective of the pre-contractual, contractual or non-contractual basis of the claim, provided that the contract partner's body, life or health was not affected or the breach is not a breach of a material contractual obligation (cardinal obligation).
11. Exclusion of Liability
Any failure to receive a consignment must be reported to iTernity within two weeks following issue of the invoice or knowledge of the dispatch. Any failure to notify iTernity shall exclude iTernity from liability.
12. Export Transactions
12.1 Legal notice: Goods delivered by iTernity may be subject to German and foreign export controls and embargos. The re-export from Germany and the re-import to third countries is then only permitted with the consent of the competent authorities (as the case may be, several countries and the EU).
12.2 It is up to the contract partner to check the possibility of Clause 12.1 on a case by case basis.
12.3 Likewise, it is up to the contract partner to advise his customers of the possibility of Clause
12.1 and to use its influence to ensure that any existing obligations are fulfilled right through to the end customer.
13. Place of performance
The place of performance shall be iTernity's registered office (seat).
14. Place of jurisdiction
14.1 The place of jurisdiction shall be iTernity's registered office (seat) in Freiburg im Breisgau, Germany. This applies to local and international jurisdiction. The contract partner's place of jurisdiction is revoked.
14.2 The provision applies to contractual relations with merchants, public-sector legal entities and public-sector special funds or bodies. For non-merchants the statutory rules shall continue to apply.
15. Applicable Law
German civil substantive law (choice of law in accordance with Art. 27 Introductory Act to the German Civil Code (EGBGB)) shall apply exclusively. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded. German law shall apply instead.
16. Written form
Any amendments and additions (individual agreements) must be made in writing.