Table of Contents
- Conclusion of Contract
- Prices and Conditions of Payment
- Delivery and Shipping Conditions
- Condition of the goods
- Force Majeure
- Delay in Performance at the Customer's Request
- Retention of Ownership
- Liability for Defects / Guarantee
- Retention and Assignment
- Applicable Law, Jurisdiction and Contract Language
1.1 These terms and conditions (hereafter "T&Cs") of Cybertrading GmbH (hereafter "Vendor") shall apply to all contracts for the supply of goods which an entrepreneur (hereafter "Customer") shall conclude with the Vendor using distance communication media (e. g., telephone, fax, email, letter) exclusively by individual communication pursuant to section 312j(5) sent. 1 BGB [German Civil Code]. The inclusion of the Customer's own conditions is hereby refuted, unless something else is agreed.
1.2 These Terms and Conditions shall also apply exclusively if the Vendor, in the knowledge of contradictory conditions or conditions of the Customer's differing from these conditions, undertakes delivery to the latter without special reservation.
1.3 According to these T&Cs, an entrepreneur means a natural or legal person or a partnership with legal personality, who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.
1.4 According to these T&Cs, an entrepreneur shall also mean public authorities or other institutions of public law when they are acting exclusively according to civil law in concluding contracts.
2) Conclusion of Contract
The Customer may make a non-binding enquiry about making an offer to the Vendor by telephone, fax, email, letter or via the online contact form on the Vendor's website. Upon the Customer's enquiry, the Vendor shall send to the Customer by email, fax or letter a binding offer on the sale of the goods previously selected by the Customer from the Vendor's selection of goods. The Customer may accept this offer vis-a-vis the Vendor by means of a declaration of acceptance by fax, email or letter or by payment of the purchase price offered by the Vendor within 7 (seven) days from receipt of the offer. The day on which the offer is received shall not count towards the seven days of the acceptance period. Acceptance by payment shall be determined by the day on which payment is received by the Vendor. If the last day of the period for accepting the offer falls on a Saturday, Sunday or an official general public holiday at the Customer's location of business, the next working day shall replace this day. If the Customer does not accept the Vendor's offer within the previously mentioned period, the Vendor shall be no longer bound to his offer and may freely dispose of the goods again. The Vendor shall advice the Customer of this again in particular.
3) Prices and Conditions of Payment
3.1 The prices stated by the Vendor are net and do not include statutory VAT. Packing and shipping costs, loading, insurance (in particular transport insurance), customs and duties are also calculated separately as necessary.
3.2 Various payment methods are available to the Customer which he will be notified of in the Vendor's offer.
3.3 Further costs may become due on a case by case basis for deliveries to countries outside the European Union for which the Vendor shall not be liable and which shall be borne by the Customer. For example, these include bank charges (e.g. transfer fees, conversion fees) and import duties or taxes (e.g. customs). Such costs for transfer fees can arise when the delivery is not made to a country outside the European Union but the Customer makes payment from a country outside the European Union.
3.4 If prepayment by bank transfer has been arranged, payment shall be due immediately upon conclusion of contract, unless the Parties have agreed a later due date.
3.5 If payment is to be made using one of the payment methods offered by PayPal, the payment will be processed by payment services provider: PayPal (Europe) S.à r.l. et Cie, S.C.A., 22-24 Boulevard Royal, L-2449 Luxembourg (hereafter: "PayPal") according to PayPal's conditions of use, which can be accessed at: https://www.paypal.com/de/webapps/mpp/ua/useragreement-full or, in case the Customer does not possess a Paypal account, according to the conditions for payments without a Paypal account, accessible at: https://www.paypal.com/de/webapps/mpp/ua/privacywax-full.
3.6 If purchase on account is selected as payment method, the purchase price shall become due after the goods have been delivered and invoiced. In this case the purchase price shall become due and payable without deductions within 7 (seven) days of receiving the invoice, unless something else has been agreed. The Vendor retains the right to offer purchase on account as a payment method only up to a certain order volume and to decline this payment method if the stated order volume is exceeded. In this case the Vendor shall inform the Customer of the applicable payment restrictions in the payment information on his online shop. When payment on account is selected as payment method, the Vendor shall furthermore retain the right to carry out a credit check and, if the credit check is negative, to decline this method of payment.
3.7 Payment shall count as received as soon as the equivalent is credited to one of the Vendor's accounts. In case of default of payment the Vendor shall have a claim to interest on arrears amounting to 10 percent above the applicable basic interest rate. The Vendor's other statutory rights in the case of default of payment by the Customer shall hereby remain unaffected. If claims become overdue, received payments shall firstly be applied to any costs and interest, then to the oldest claim.
3.8 Should unforeseeable rises in prices occur (e.g., currency fluctuations, unexpected price rises by suppliers, etc.) the Vendor shall be entitled to pass the price rises on to the Customer. This shall, however, only apply if according to agreement delivery is due to take place four months after the conclusion of contract.
4) Delivery and Shipping Conditions
4.1 Consignment shall be made to the delivery address as given by the Customer, unless something else has been arranged.
4.2 The Vendor shall be entitled to make partial deliveries inasfar as this is reasonable for the Customer. In case of permissible partial deliveries the Vendor shall be entitled to raise partial invoices.
4.3 The Vendor shall retain the right to withdraw from the contract if he himself is incorrectly or improperly supplied. This shall only apply in the case that the Vendor is not liable for the failure to supply and he has concluded a definite covering transaction with the supplier with the requisite care. The Vendor shall undertake all reasonable effort to procure the goods. In case of unavailability or only partial availability of the goods the Customer shall be informed without delay and his consideration recompensed without delay.
4.4 The risk of accidental destruction and accidental deterioration of the purchased goods shall pass to the Customer as soon as the Vendor has consigned the thing to the carrier, the haulage driver or the person or institution otherwise designated to undertake shipping. This shall also apply when the Vendor bears the transport costs. Transport insurance shall only be concluded upon particular request and at the Customer's cost.
4.5 In case the dispatch of the goods to the Customer is delayed for reasons for which he is liable, the passing of risk to the Customer shall occur upon notification of dispatch readiness. Any storage costs incurred after the passing of risk shall be borne by the Customer.
5) Condition of the goods
We deliver different conditions of goods and devices. New goods, refurbished goods and used goods. Therefore, unless otherwise agreed, the following characteristics apply to the respective states:
5.1 New: These are new and unused goods. Unless explicitly agreed and offered, we reserve the right to deliver items that have the following characteristics:
- It is possible that no manufacturer warranty can be claimed. This is where our guarantee applies.
- It cannot be guaranteed that the latest versions are used on the hardware and software side.
- The packaging may have already been opened. (NOB = New Open Box)
- An identically constructed device from another manufacturer is delivered.
- The device no longer has the original packaging from the manufacturer. (Bulk goods).
- Partially missing accessories such as cables, screws or operating instructions.
- The equipment does not always meet the requirements to be included in a maintenance contract of the original manufacturer.
5.2 Refurbished: These are used devices, often without original packaging, which have been technically checked, professionally cleaned and refurbished. The devices offer all functions of a corresponding new device. All data of the previous owner has been deleted in an audit-proof manner. Minor optical defects may occur. Unless explicitly agreed and offered, we reserve the right that:
- Suitable basic accessories are supplied either by the original manufacturer or 3rd party manufacturer.
- Extended accessories or operating instructions are not included in the scope of delivery.
- Articles with designations such as spare, renew, excess refurbished, refresh, remanufactured, which are directly brought to market by the manufacturer, can also be supplied.
5.3 Used: These are used equipment, without original packaging that has not been technically and visually inspected for damage. The devices often show signs of wear and tear and no functional reliability can be guaranteed. The data may not have been professionally erased.
6) Force Majeure
In case of incidents of force majeure that affect the fulfilment of the contract, the Vendor shall be entitled to postpone delivery by the duration of the hinderance, and, if delays are of longer duration, to withdraw from the contract completely or partially, without any claims against the Vendor being hereby derived. Force majeure means all events which are unforeseeable to the Vendor or such which – even if they were foreseeable – are outside the Vendor's power to control and whose effects on the fulfilment of the contract cannot be prevented by the Vendor's reasonable efforts. Any statutory claims of the Customer's remain unaffected.
7) Delay in Performance at the Customer's Request
If consignment or delivery of the goods is delayed at the Customer's request by more than one month after notification of dispatch readiness, the Customer may be charged a storage fee amounting to 0.5% of the purchase price for each further month commenced, up to a maximum of 5% of the total purchase price. The Parties shall remain unaffected by proof of greater or lesser damage.
8) Retention of Ownership
8.1 The Vendor shall retain ownership of the delivered goods until full payment of the due purchase price is made. Furthermore, the Vendor shall retain ownership of the delivered goods until all his claims arising from the business relationship with the Customer have been fulfilled.
8.2 The Customer may not pledge or assign as security objects that are subject to retention of ownership.Resale as part of normal business is only permitted to the Customer as reseller on the condition that the Customer's claims against his purchasers arising from the resale have been effectively assigned to the Vendor and the Customer transfers ownership to his purchaser on condition of payment. By concluding a contract, the Customer assigns his claims against his purchasers arising from such sales as security to the Vendor who shall simultaneously accept the assignment.
8.3 The Customer shall report access to goods that are the Vendor's property or joint property or to the assigned claims immediately.He shall discharge to the Vendor immediately any assigned amounts he has collected, inasfar as the latter's claim is due and payable.
8.4 Inasfar as the value of the Vendor's rights to the security exceed the amount of the secured claims by more than 10%, at the Customer's request the Vendor shall release a corresponding share of the rights to the security.
9) Liability for Defects / Guarantee
If the purchase item is defective, the provisions of the statutory liability for defects shall apply. The following shall apply notwithstanding:
9.1 Claims for defects that do not arise from natural wear and tear or damage which arises after the passing of risk as the result of incorrect or negligent handling, overuse, unsuitable means of operation or due to particular external influences which are not envisaged by this Contract. If improper alterations or maintenance works are carried out by the Customer or third parties, claims for defects shall not arise from these or from the resultant consequences, unless the Customer can prove that the reported malfunction was not caused by these alterations or maintenance works.
9.2 The limitation of claims for defects to new goods shall be one year from the passing of risk.
9.3 Rights and claims for defects to used goods are excluded.
9.4 The restrictions on liability and reduction of limitations stipulated above shall not apply
- to items which have been utilised for a building in accordance with the normal way they are used and have resulted in the defectiveness of the building,
- to the Customer's claims for damages and reimbursement of expenditure,
- if the Vendor fraudulently concealed the defect, and
- to claims for recourse pursuant to sec. 445a BGB [German Civil Code].
9.5 In case of remedy the Vendor shall have the right to choose between repair and substitute consignment.
9.6 Should a substitute consignment be made within the scope of liability for defects, the limitation period shall not begin again.
9.7 Should a substitute consignment have been made as remedy, the Customer shall return the previously delivered goods to the Vendor within 30 days. The returns package must state the reason for the return, the customer name and the number issued for the sale of the defective goods, which will enable the Vendor to process the returned goods. Inasmuch as processing the returned consignment is not possible for reasons for which the Customer is liable, the Vendor shall not be obliged to accept the returned goods or to reimburse the purchase price. The Customer shall bear the costs of a new consignment.
9.8 If the Vendor supplies a defect-free item for the purpose of remedy, the Vendor may assert a reimbursement of emoluments pursuant to sec. 436(1) BGB [German Civil Code] against the Customer. Other statutory claims remain unaffected.
9.9 If the Customer is acting as a merchant pursuant to sec. 1 HGB [German Commercial Code], he shall be subject to the commercial duty of inspection and notification of defects pursuant to sec. 377 HGB. If the Customer fails to perform these duties, the goods shall be deemed to be approved.
The Vendor shall be liable to the Customer according to all contractual, quasi-contractual and statutory claims, including criminal claims, for damages and restitution of expenditure as follows:
10.1 The Vendor shall be liable according to every legal reason and without restriction
- for intent and gross negligence,
- for intentional or negligent injury to life, body or health,
- on the basis of giving a guarantee, as far as this not regulated in another way,
- on the basis of compulsory liability such as the Product Liability Law [Produkthaftungsgesetz].
10.2 If the Vendor infringes an essential contractual obligation, liability shall be limited to the foreseeable damage typical for the contract concerned, inasfar as liability is not unlimited pursuant to the foregoing clause. Essential contractual obligations are obligations which the Contract enjoins upon the Vendor according to its content in order to achieve the purpose of the contract, the fulfilment of which makes the proper execution of the contract at all possible and which as a rule the Customer may trust to be observed.
10.3 Any other liability of the Vendor's is excluded.
10.4 The above mentioned liability provisions shall also apply in respect of the Vendor's liability for persons he uses to perform obligations and his legal representatives.
Claims of the Customer's against the Vendor shall become statute-barred (with the exception of claims under the point "Liability for Defects / Guarantee") one year after gaining knowledge of the facts justifying the claim, and a maximum of five years after performance was effected, unless liability is unlimited pursuant to the foregoing clause.
12) Retention and Assignment
12.1 The Customer's rights of retention and refusal to effect performance are excluded, unless the Vendor does not contest the counterclaims on which they are based or they are established in final judgment.
12.2 The assignment by the Customer of claims arising from the contract concluded with the Customer, in particular the assignment of any of the Customer's claims for defects, is excluded.
13) Applicable Law, Jurisdiction and Contract Language
13.1 The law of the Federal Republic of Germany shall apply to all the Parties' legal relations to the exclusion of the laws on the international sale of goods.
13.2 If the Customer is acting as a merchant, legal person under public law or special fund under public law located in the territory of the Federal Republic of Germany, the Vendor's place of business shall be the exclusive place of jurisdiction for all disputes arising from this Contract. If the Customer has his place of business outside the territory of the Federal Republic of Germany, the Vendor's place of business shall be the exclusive place of jurisdiction for all disputes arising from this Contract if the contract or claims arising from the contract can be attributed to the Customer's vocational or business activities. The Vendor is in any case entitled to invoke the court at the Customer's place of business in the foregoing cases.
13.3 The contractual language shall be German.