of the Cybertrading GmbH
as of September 2014
1. General information – scope
1.1 Unless the company Cybertrading GmbH agreed otherwise with the customer, these General Terms and Conditions of supply, service and payment apply to all deliveries and services demanded by the customer. In business transactions with merchants, these Terms and Conditions also apply to all future purchase and service contract without special reference to each individual case. If one contract party relies on an agreement which deviates from these given Terms and Conditions and is not confirmed in written form by the other contract party, this first contract party has to prove its case.
General Terms and Conditions of business of customers, which deviate from the content of our own Terms and Conditions of supply, service and payment or which contain additional regulations, will be objected by us.
1.2 Our Terms and Conditions shall also apply when, aware of contrary delivery conditions or delivery conditions of the customer which deviate from ours, we carry out the delivery to the customer without reservation.
1.3 Subsidiary agreements and deviating agreements require our written confirmation in order to have legal effect.
2. Offers and Orderings
2.1 Our electronic, written or oral quotations are subject to changes without notice and do not constitute an offer in the legal sense, but only a request to the customer to make an order. The customer will generally receive an acknowledgment of his order; however, this acknowledgement does not constitute a purchasing contract, even though it may contain all relevant information. The customer shall be bound to his order for a time period of two weeks after receipt by us. A contract is deemed to be concluded with our written order confirmation or with the acceptance of the delivery by the customer. Our offers and confirmation of orders are always subject to a positive check of our customer’s creditworthiness and subject to due and proper delivery of our own suppliers.
2.2 The documents accompanying this offer, such as pictures, illustrations, measurements, etc. are only approximately authoritative, unless they are expressly designated as being binding. All offer documents such as estimates of cost, drawings etc. shall remain the customers property, unless the customer has been charged for this. The rights of use of such shall exclusively be due to the Cybertrading GmbH and will not be available for any third parties. Rights of use shall only be due to the customer if he/she has been charged for the preparation of such documents.
2.3 All prices are to be understood as plus value-added tax at the German statutory rate applicable at the time of payment. Unless it is agreed different, the prices are unit prices for the delivery of unpacked goods. Packaging, transportation cost, insurance as well as costs for set up or assembling will be calculated as additional service and charged separately. Stated prices refer to the services described in the offer. They are not valid for order volumes which deviate from the original offer.
2.4 If the time period between contract closing and the agreed delivery and service date exceeds 6 weeks, the customer has to pay the generally valid list price that has been appointed by us at the time of delivery.If the price of our own supplier changes until the date of delivery, the retail price will change respectively.
3. Industrial property rights, copyrights
3.1 The products including their circuit diagrams, drawings, drafts, descriptions and similar
documents as well as the software are normally subject to industrial property rights or copyrights of the manufacturer/licensor. Indications of such property rights on products may not be altered, covered or removed by the customer.
3.2 The customer is obliged to inform his customers about the industrial property rights and terms of license of the manufacturers as they are named above and also about the restrictions regulated by the terms of license.
3.3 We can only be made liable for damages due to infringements of such industrial property rights if these were known to us or should have been and that these lead to claims of a third party against the customers. The amount of our liability in this event is limited to the invoice value of the good.
4. Condition, delivery times and deliveries, delay in delivery
4.1 Only our written information are decisive for the scope and time of delivery and the agreed upon condition of the goods. Additional agreements and changes require our written consent.
4.2 As long as our written information does not mention anything else, the delivery is agreed to start at the Logistik-Center Barleben. The costs and the risk of transportation as well as the loading and packaging costs will be borne by the customer. This is also valid for returns, see subparagraph 10. Currently we charge a packaging charge of €1.00 for the packaging of the goods. The customer is responsible for the compliance of any limited periods, e.g. periods according to the General German Forwarding Conditions (allgemeine deutsche Speditionsbedingungen (ADSp))
4.3 If we did not agreed with the customer on a special shipping method, the selection of the mode of dispatch will be in our option. An insurance of the transportation will not be contracted unless it is agreed differently before shipping. The transportation by train or a forwarder will only take place at the behest, the cost and the risk of the customer. Deliveries abroad will always be made at the customers’ charge. The delivery will be made to the agreed place and if there will be additional cost for changed instructions these will be at the customers’ charge.
4.4 The goods which will be provided by us for collection need to be collected or called off within 2 weeks. For any time which exceeds these two weeks we will be entitled to charge storing costs of the usual amount. The customer is obliged to collect the goods within the general business hours and within a reasonable period of time. Goods which have already been assigned to the customer and which are not collected by him until 4 weeks afterwards may be sold to other customers by us. Nevertheless, the contractual relation between the two parties remains unchanged.
4.5 We are only obliged to respect foreign regulations on packaging, weighing and customs if the customer has given us exact indications about this early enough. Additional costs involved will be at the customers’ charge.
4.6 Transport and other packaging according to the German Packaging Ordinance will not be taken back with the exception of pallets. The costs of the disposal of the packaging will be at the customers’ charge.
4.7 The delivery dates that we provide are only to be considered approximate. However, as a general rule the start of the delivery period stated by us presupposes that all technical issues and details have been clarified. A delivery period stated by us starts on the issuance date of the respective confirmation, however not before the customer has provided us with all documents, permits, acceptances and the receipt of the down payment agreed upon. The delivery time itself is considered as met, if by the end of the agreed delivery time the goods have been shipped or it has been reported that the goods are ready for dispatch.
4.8 The delivery period shall be reasonably extended against the background of measures taken within the scope of industrial action, particularly with regard to strikes and lockouts, as well as upon the occurrence of unforeseeable obstacles that are beyond our will, as far as such obstacles have a provable material influence on the delivery objects' completion or delivery. This shall also apply if such circumstances occur at our subcontractors. We are not liable in the circumstances described above, even if they arise during a delay already existing. The beginning and end of such obstructions shall be communicated to the customer as quickly as possible.
4.9 We are authorized to deliver in instalments and to invoice such instalments respectively.
4.10 In case of a delay in delivery based on slight negligence we are only liable to an amount of 5% of the delivery amount in delay, in any case, however, limited to the predictable damage occurring in typical cases.
4.11 If the delay is due to intent or gross negligence by us, we can be made liable according to the statutory regulations, however, limited to the predictable damage occurring in typical cases, as long as there will be no deliberate contract breach from by us.
4.12 We are liable according to the statutory regulations if the underlying purchase contract is a short selling or the customer loses his interest in any further contractual performance as a result of the delay in delivery which has been caused by us.
5. Inspection of the goods
The customer shall inspect the incoming goods immediately upon their receipt for its completeness, compliance with the delivery documents and for defects and to immediately claim all perceptible deviations and defects in written form. In case the customer does not report the deficiency within 4 working days as of receipt of the goods, the delivery is considered to be conformable to the contract, unless it has not been possible to find the deficiency in spite of a careful examination of the product. Defects caused by transport or missing of parts apparent at the time of delivery are to be noted on the carrier's receipt voucher according to § 438 HGB [German Commercial Code].
6. Prices and Payment
6.1 The prices defined within our written order confirmation shall apply. Otherwise, if nothing to the contrary has been agreed upon in writing, the prices defined by our price list as of the day of acceptance of the order shall apply.
6.2 All prices are quoted net ex works plus VAT and costs for transportation and packaging.
6.3 We reserve the right to increase our prices in response to increased costs after contract closure, especially due to tariff agreements, increased cost of materials or exchange rate fluctuations. We will provide evidence of these changes to the customer upon request.
6.4 Unless otherwise agreed, our invoices are payable without any deduction within 14 days after the invoice date. If the customer exceeds the agreed due date for the payment, we are entitled - without any prejudice to other rights - to charge a default interest in the amount of 8% p.a. in accordance with the BGB. In the case of late payment, all outstanding debts become immediately due for payment.
Payments via check or draft shall only be accepted on account of performance and request our consent. Expenses and discount debits which are brought about by draft or checks and all other respective costs are at the customers’ charge.
6.5 Any retention of payments or offsetting because of eventual counter-claims of the customer is only permissible if the claims are determined without further legal recourse or undisputed by us. Customer may only set off claims which are undisputed or are final and absolute. The customer can only claim a right of retention regarding asserted claims which are based upon the same contractual relationship. In the case of on-going business relationships, each individual order shall be deemed to be a separate contractual relationship.
6.6 In case of payment difficulties of the customer, especially concerning default of payment, check or bill protest, we are entitled to declare all deferred and other outstanding billing amounts immediately due and to command cash payment or bails. Once the customer has settled the matter, the customer has a claim to the return of the checks and bills that were taken by us for processing. Nevertheless, until then we stay entitled to alternative proceedings of the checks and bills receivable.
6.7 Our billings are deemed as acknowledged if the customer does not object to in in writing within 30 days starting on the billing date and if we indicated the importance of the deadline expiration in the billing statement. If only partial delivery due to contractual agreements or due to our operating situation (e.g. capacity of transportation or partially not available stocking) is possible, we can invoice each partial delivery separately to our customers and we are entitled to continue delivery only if the customer has paid the invoices of the previous partial deliveries, if no other written agreement is opposed by that.
6.8 Notwithstanding any terms of the customer, we are entitled to first off-set old debts of the customer. If costs and interest have already occurred, we shall be entitled to assign the payment first of all to the costs, then to the interest and last of all to the main debt.
6.9 In the event of non-compliance with the terms of payment without justifying reason, we may have the possibility to demand delivery versus cash payment, advance payment or a bail. All outstanding receivables including the ones for which an installment payment is agreed upon will be immediately due.
6.10 The granted terms of payment are valid regarding the credit limit which is assigned for each single order. If the order exceeds the credit limit, we are reserved to demand the exceeding amount as advance payment. In case of a subsequent change of creditworthiness, we are entitled to command delivery versus cash payment, payment in advance or a bail and in the event of a non-fulfillment we may rescind the contract.
7. Title retention
7.1 We shall retain the title of the goods delivered up to the time of receipt of the full payments which arise from the business relationship between us and the customer.
7.2 The customer is obliged to treat the delivery items carefully; he is particularly obliged to insure them adequately at his own cost against damage caused by fire, water and theft.
7.3 The customer is entitled to resale delivery items through an orderly business process; however, the customer is not entitled to pledge or to transfer them by way of security. Already now, the customer cedes all the claims and liabilities occurring from the resale of the goods in the amount of the invoice final amount to us.
The customer shall remain entitled to collect the assigned claims even after the assignment; however, this does not affect our entitlement to assign the claims by ourselves. Nevertheless, we will not collect the ceded claims as long as the customer meets payment obligations from the received income, as long as there is no default of payment and there does not exist an application for the opening of a judicial insolvency proceeding or there is a cession of payment. We herewith accept the assignment. The customer is obliged to provide us with all information which is necessary to collect the ceded claims.
7.4 Any modification of processing of the reserved goods is done for us. If supplied goods are processed, assembled, mixed or blended with other items that do not belong to us, we shall be granted joint title to the new product in the ratio of the value the goods supplied to the value of the other processed items at the time of processing, assembling, mixing or blending.
If the customer obtains sole ownership of the new item, it is agreed that the customer will grant a proportional co-property to us. This will be kept safe for us free of charge. The above mentioned advance assignment is valid in the above mentioned cases only to the invoiced amount of the conditional commodity which is resold together with the other goods. In the event of an attachment or any other action by third parties affecting conditional commodity or the claims ceded in advance, the customer has to immediately inform us and provide us with the details necessary for an intervention. Costs resulting from this which cannot be recovered by any third party will be at the charge of the customer.
7.5 We undertake to release the securities due to us on the basis of the above provisions at our discretion upon the Purchaser's request to the extent that their realizable value exceeds the claim secured by 20% or more.
8. Liability for defects
8.1 Assertion of the customer's defect rights presumes that the customer has correctly fulfilled his duties of inspection and duties to give notice of complaints. There is no warranty for second-hand goods except for damages arising out of death or injury to body or health or for damages arising out of a deliberate or negligent breach of duty. In case of a software purchase or the purchase of user’s licenses the software use for the first time or the first activation of the user’s license results in a final conclusion of the contract. In these cases the return of the purchased software/user’s license or the reversed transaction of the contracts made for the delivery is not possible. This is not the case if there is a deficiency in the software and/or the user’s license.
8.2 In case the product purchased has a defect and there is an existing warranty of the producer, the customer is obliged to seriously try the enforcement of the claims arising from this manufacturer’s warranty before enforcing the claims to us. We will support the customer in these actions. Apart from that the warranty claims of the customer will remain unaffected.
8.3 In case and as far as the customer is not satisfied after such a claim, we are at first instance and upon our own choice entitled to fulfill the contract by correcting the faults or delivering substitute items. Replaced products or parts thereof are our property and shall be returned to us. If we are not prepared or not in a position to fulfil the contract or if the fulfilment is delayed beyond reasonable times for reasons beyond our control or if the fulfilment is not successful for other reasons or if this is not reasonable for the customer, the customer is authorized either to withdraw from the contract or to request a reduction of the purchase price. Any possible compensation claims are stipulated in section 9.
8.4 In case of a withdrawal the customer has to pay for the benefits of use which he had until the date of the withdrawal. The benefits of use until the date of the withdrawal shall be calculated proportionately based on the purchasing price and the general period of use, except the use was only partially or not at all possible due to the damage. The right of both parties to show evidence of a minor or major defect remains reserved. An insignificant defect does not entitle the customer to withdrawal from the contract.
8.5 As far as the customer has the right to withdraw from the contract due to inadequate fulfillment and/or can claim damages instead of fulfillment of the contract or at least affirms this, upon our request, the customer will explain within an adequate period in writing if he asserts his rights or wants service provision until further notice.
8.6 If the following inspection of the product subject to warranty shows that actually no warranty claim exists a standard operating/processing charge will be invoiced to the customer. It will remain reserved to the customer to prove a less effort than invoiced to us.
8.7 All warranty claims shall become statute-barred within 12 months after transfer of perils.The processing of a notification of defects of the customer by us does not indicate an acknowledgement of the defect.The processing of the notification of defect only results in a suspension of the period of limitation if the legal requirements to this regard are met. The period of limitation shall not recommence as a result of this. This is also valid if we provide a supplementary performance (correction or replacement) due to a notification of defects of the customer. Supplementary performance may only affect the statutory period of limitation of the defect requiring supplementary performance. The rights of the customer according §§ 478, 479 BGB will remain reserved.
9. Total liability
9.1 Unless stated differently in the following, further-reaching claims of the customer - no matter what legal reasons for - are hereby excluded. In particular, we shall not be liable for damage which was not caused in respect of the subject matter of delivery itself; we shall not be liable for any lost profit or other financial loss of the customer.
9.2 The aforementioned exclusion of liability shall not apply if the cause underlying the damage was attributable to wrongful intent or gross negligence of us or any of our vicarious agents or legal agents or if we negligently violated any essential contractual obligations. The exclusion of liability is also not applicable if guaranteed qualities are missing and if the purpose of the guarantee was to provide the customer with cover against any damage not resulting to the delivery item itself.
9.3 Our obligation to pay damages in case of simple negligence is restricted to the foreseeable damage, in any case, however, to the amount covered by our product liability insurance. We are prepared to give the customer insight into our policy on request.
9.4 All warranty claims shall become statute-barred within 12 months after transfer of perils.This is also valid for all claims referring to the replacement due to consequential damages, as long as claims are not asserted due to fraudulent concealment, illegitimate behavior or liability claims due to negligence.
9.5 Any liability to damages beyond that stated in the preceding paragraphs is excluded
- without any regard to the claim asserted within the due period. The foregoing shall not apply to claims related to death, physical injuries or health, claims arising according to §§ 1, 4 German Product Liability Act or claims arising from torts or from impossibilities for which we are responsible.
Returns have to be sent to the Cybertrading GmbH, Steinfeldstraße 3, 39179 Barleben, Bundesrepublik Deutschland free of charge and these will be only conditionally accepted and will be subject to inspection by us. Returns shall, unless anything to the contrary is agreed upon, only be processed by us if they are accompanied by a return covering letter including the order- and the customer reference. The customer bears the risk of the return delivery including the risk of destruction. We will only refund reasonable cost of return delivery of defective goods if these do not exceed 5 % of the order value of the returned goods. The rights of the customer according to § 478 II BGB remain unaffected. In case of a return for which only the customer is responsible, especially due to non-acceptance of the delivery, we will charge a restocking fee.
The assignment of any of the customer's claims against us resulting from the business relationship requires our written consent to be valid, which we shall not unreasonably withhold if any legitimate interest of the customer exists.
12. Export, Anti-Corruption
12.1 All products and technical know-how will be delivered by us in accordance to the current valid AWG/AWV/EG-Dual-Use regulation as well as the US export regulations. All products and technical know-how are determined to remain and be used in the country which is agreed upon with the customer. If the customer intends to re-export products, the customer is obliged to comply with US-American, European and national export regulations. The re-export of products – individually or integrated in a system – contrary to these regulations is forbidden. The customer itself is responsible for the compliance with export- and embargo regulations. Products from the United States are subject to export control. Consequently the export and re-export of products are subject to approval, even if they only contain parts of good, which are subject to export control. The respective business partner is responsible if such goods are resold.
12.2 The customer is obliged to inform himself independently about the currently valid regulations and provisions (Bundesausfuhramt, 65760 Eschborn/Taunus bzw. US Department of Commerce, Office of Export Administration, Washington D.C. 20230). Irrespective of whether the customer has mentioned a final place of destination of the delivered goods, it is the responsibility of the customer to gather the necessary authorizations of the respective competent foreign trade authority, before exporting such goods. We do not have a disclosure obligation.
12.3 For any delivery of contractual products to third parties, be it with or without our knowledge, it is necessary to transfer the provisions of the export license. The customer is completely liable in the event of a non-compliance with the relevant regulations.
12.4 Without prior official permit the customer is not allowed to deliver goods directly or indirectly to countries which are subject to a US-embargo or to natural or legal entities which are on the US, European or national banned list (e.g. “Entity List”, “Denied Persons List”, “Specifically Designated Nationals and Blocked Persons”). Furthermore, the customer is not permitted to deliver products to natural or legal persons that are in any way connected to the support, development, production or use of chemical, biological or nuclear weapons of mass destruction.
12.5 Customer has not made, and will not make, any direct or indirect payment, offer to pay, or authorization to pay, any money, gift, promise to give, or authorization of the giving, of anything of value to any government official, or the immediate family of any such official, for the purpose of influencing an act or decision of the government or such individual in order to assist, directly or indirectly, customers of Cybertrading in obtaining or retaining business, or securing an improper advantage.
13. Data processing
In our company order processing is carried out with the help of automatic data processing. Hereby, the customer explicitly agrees with the processing and saving of data, coming to our notice in the course of contractual relations and being necessary for the order processing. The customer shall agree that we use the data we received in the course of the business relationship for business purposes according to the federal Data Protection Act. This information is treated by us confidentially and will not be shared with any third party which is not part of the order-, delivery- or payment process. The customer has the right to obtain information, upon request and free of charge, regarding the personal data of him which we have stored. Moreover, the customer has the right to correction of incorrect data or the blocking or deletion of his personal data provided there is no legal obligation to keep records.
14. EU-Import Sales Tax
A customer who lives outside of Germany has to consider the regulation concerning the import sales tax of the EU. It is especially important for the customer to tell us his value added tax identification number and to willingly give us all necessary information. The customer has to refund us the accruing effort in case he disregards the abovementioned regulations.
Subsidiary agreements must be made in writing. This shall also apply to a waiver of the requirement of written form.
Should any individual provision of the preceding provisions become void, this will not affect the validity of the contract as a whole or of the other provisions.
16. Project terms and Special terms
16.1 For the sale of products of special suppliers for special prices which are offered to our customers from our suppliers via us (also called SBO, OPG, project agreements, etc.) special sales terms (“project terms”) will apply here additional to the General Terms and Conditions of business. The customer agrees to such project terms if he orders products at a special price. In case there is a breach of such project terms we are entitled to reclaim any early payment discounts, any sales discounts or subsidies which result from the project terms or we are entitled to invoice the difference to the regular price. The customer agrees to indemnify us for any claims made against us by the suppliers for Customer's non-compliance with the supplier's terms and conditions as well as for all further damages resulting from the customer's non-compliance with the supplier's terms.
16.2 For the sale of products of particular suppliers additional, special sales conditions (“special terms”) will apply among these General Terms and Conditions of business. The customer agrees to the special terms if he orders products of suppliers for which the special terms apply.
17. Place of jurisdiction and place of performance, applicable law
Magdeburg is the place of performance for all obligations resulting from the contract relationship. Towards merchant Magdeburg is also the place of jurisdiction for all legal disputes which result from the contractual relationship as well as about its emergence and about its effectiveness. However, we are also entitled to sue the customer on his location. The whole contractual relationship is governed by the laws of the Federal Republic of Germany, excluding provisions governed by the UN Purchase Law Convention.