1. General / Scope of application
(A) All legal transactions with the customers of COMdata GmbH, in particular contracts for deliveries, shall be concluded exclusively on the basis of the following conditions insofar as these are carried out for a natural or legal person or a legal person in the exercise of their commercial or independent professional activities. By accepting the delivery or service the customer agrees to the validity of these conditions also for all future business.
(B) Conditions of the customer deviating from or deviating from these terms and conditions are contradicted by COMdata GmbH, unless COMdata GmbH has expressly approved this in writing. The terms and conditions of COMdata GmbH shall also apply to cases in which COMdata GmbH has confirmed the order in writing or in writing with reference to these conditions or without reservations of the customer in the knowledge of conflicting or deviating terms and conditions of the customer.
2. Offer / Contract conclusion
(A) The offers of COMdata GmbH are – unless otherwise agreed in writing – until the conclusion of the contract always without obligation and free of charge and subject to a positive credit assessment. We reserve the right to protect our claim by an insurance done by the VHV Allgemeine Insurance AG Hannover. In this context, our insurer or we carry out a credit assessment and store our customers’ data directly. All mutual legal transactions shall only come into effect upon receipt of a written order confirmation by COMdata GmbH, at the latest upon execution of the delivery.
(B) The correction of misprints and errors as well as minor deviations in quality and execution, as far as these do not contradict a contractual obligation, is reserved to COMdata GmbH and do not constitute defects. The client is bound to the order for four weeks.
3. Prices / payment / delay
(A) The prices are, unless otherwise agreed in writing, pure net price in Euro and are understood without costs for freight, transport, insurance, packaging and the statutory duties, in particular the legally valid VAT. For orders under 100, – Euro total net amount A small order surcharge of currently 8, – Euro plus statutory VAT is levied, special agreements are possible.
(B) Invoicing is effected with delivery, the delivery of the customer against cash on delivery, unless other written agreements have been made. In the case of delivery to open account, the entire invoice amount must be paid within the payment periods specified in the invoices of COMdata GmbH. Checks are not accepted as payment only for the sake of fulfillment and bills of exchange. Discounts may only be claimed if these have been accepted by COMdata GmbH in the invoice. The deduction of agreed cash discount is in any case only permitted on the condition that the customer is not in default with other payments. COMdata GmbH may terminate COMdata GmbH’s agreed or agreed payment targets with immediate effect.
(C) Delay in payment shall occur at the due date of the claim without the need for a reminder. In the event of a delay in payment, COMdata GmbH shall be entitled to demand default interest of 6% above the base rate. COMdata GmbH reserves the right to assert a higher or further damage. In the event of a delay in payment, all claims of COMdata GmbH shall be due immediately from the entire business relationship.
4. Offsetting / Retention
(A) A set-off by the customer is only permissible with undisputed and legally binding claims.
(B) The assertion of the right of pledge by the buyer is excluded. The customer’s right of retention shall also be excluded if these are not based on the same legal relationship.
5. Delivery / Shipping
(A) Deliveries shall be made ex-warehouse Hanover at the expense and risk of the customer. COMdata GmbH is entitled at any time to deliver from another location, eg directly from the manufacturer’s works. The respective conditions then apply accordingly. Part deliveries and partial services by COMdata GmbH are permitted.
(B) COMdata GmbH shall not be responsible for unforeseen impediments to performance, including those of the subcontractors, and shall entitle COMdata GmbH to terminate all or part of the delivery obligations and to extend delivery dates accordingly. COMdata GmbH is only obliged to perform within the scope of proper self-delivery and does not accept any liability for the risk of procurement. This shall also apply in the case of the delay in delivery already received.(C) Specified delivery dates are indicative. Expressly agreed delivery dates are valid with indication of readiness for shipment and when dispatching the goods as complied with. Delivery dates shall be exclusively subject to the condition that the COMdata GmbH is properly and timely self-supplied as well as the exclusion of the liability of COMdata GmbH for slight negligence. In the event of a continuous performance impediment of more than three months, the customer shall be entitled to resign for the part of the contract that has not yet been fulfilled, with an appropriate grace period which must be at least 10 working days.
(D) If a particular mode of transport has not been expressly agreed in writing, COMdata GmbH will not accept liability for the cheapest way of transport. The unconditional acceptance of the consignment by the railway, the freight forwarder or the warehousekeeper is considered proof of a perfect condition of the goods as well as of the transport packaging and excludes claims against Comdata GmbH for damage, subject to the other proof. Insurances are only made at the explicit written request of the customer and shall be at his expense. If the dispatch or the delivery is delayed by the customer, then COMdata GmbH shall be entitled to claim at least 1% of the net invoice amount for each commenced month, subject to the other proof, starting 30 days after the notification of readiness for dispatch. Likewise, COMdata GmbH has the right to demand a higher amount if proof is required.
(E) Transport packaging in accordance with the Packaging Ordinance shall not be withdrawn by COMdataGmbH from its commercial customers, except pallets. The customer agrees to take care of disposal of the transport packaging at his own expense and, in addition, to fully assume the obligations pursuant to § 4 of the Packaging Ordinance (as of 1.4.2009). Accordingly, the purchaser will, in particular, provide the transport packaging for re-use or recycling.
6. Proprietary reservation / security
(A) COMdata GmbH retains ownership of the delivered goods (reserved goods) until all its claims against the customer arising from the business relationship, including the future claims, have been settled by simultaneous or later contracts. This also applies if individual or all receivables of COMdata GmbH have been included in a running invoice and the balance is drawn and recognized.
(B) The customer is obliged to treat the reserved goods with the necessary care and to insure them adequately against theft, fire and water damage at his own expense. The customer is entitled to resell the reserved goods, which COMdata GmbH reserves the right to ownership, only in the normal course of business if the customer hereby assigns to COMdata GmbH all existing and future receivables in the amount of the invoice amount, Customers from resale to customers or third parties. However, the customer is not permitted to pledge or safeguard the reserved goods. If reserved goods are sold unprocessed or after processing, processing or connection with items which are exclusively owned by COMdata GmbH, the processing, processing or connection for COMdata GmbH and the customer already takes place from the resale claims Invoice amount to COMdata GmbH. If reserved goods are sold by the customer – after processing / connection together with COMdata GmbH – not owned by COMdata GmbH, COMdata GmbH shall be entitled to the resulting co-ownership share as long as the sole ownership of the new item has been acquired by the customer or third parties The claims arising from the resale shall now be deducted in the amount of the invoice amount of the reserved goods with all subsidiary rights and rank before the remainder. COMdata GmbH accepts the assignment. The customer is also authorized to collect these claims after assignment. The power of COMdata GmbH to collect the claims itself remains unaffected; However, COMdata GmbH undertakes not to collect the receivables as long as the customer duly fulfills his payment and other obligations.
(C) COMdata GmbH may require the customer to notify the assigned claims and their debtors, provide all information necessary for collection, hand over the related documents and notify the debtors of the assignment.
(D) If the value of the existing collateral exceeds the receivables to be secured by more than 20%, COMdata GmbH is obliged, at the option and at the customer’s written request, to release collateral.
(E) The customer is obligated to notify COMdata GmbH immediately in writing of any action which could affect or threaten the property reserved for the purchased property. The customer shall inform COMdata GmbH of all necessary information for defensive measures. COMdata GmbH shall not be reimbursed by the customer for any costs of defensive measures that can be replaced by third parties.
(F) At any time, COMdata GmbH is entitled, even after the conclusion of a contract, to demand sufficient security to secure its claims, including not yet due, and to make further advance payments by COMdata GmbH conditional on this. This applies in particular if there are doubts about the creditworthiness of the customer, under cover or liquidity gaps, etc., or the original credit volume increases.
(G) In the case of difficulties in payment, the Purchaser shall be obliged to apply for the request for segregation.
7. Warranty / limitation period
(A) The object of the contract is solely the sold product with the characteristics and characteristics as well as the intended use according to the enclosed product description. Other or further characteristics and / or features or an additional use are only deemed to be agreed upon if they have been expressly confirmed in writing by COMdata GmbH. COMdata GmbH can not accept any liability for damages resulting from unsuitable or improper use or treatment of the delivered goods, faulty assembly or commissioning by the customer or third parties. The guarantee does not include damages caused by wear, unusual external influences, moisture, heat or cold. COMdata GmbH is also exempted from its warranty obligation if the goods have been altered, processed or attempted by the customer himself or by third parties. The exemption from liability also applies to damages caused by the use of third-party accessories.
(B) In case of insignificant defects (minor damages) on new goods, COMdata GmbH shall have the right to rectify the defect at an appropriate time limit by the customer. If the customer requires supplementary performance in other cases, COMdata GmbH may, at its discretion, remove the defect or supply a defect-free product. In the event of failure of the supplementary performance, the customer has the right to reduce the purchase price or withdraw from the contract. If there is a dispute over the amount of the reduction dispute, an expert opinion from an expert appointed by the IHK Lower Saxony is collected. In the case of withdrawal, which must be declared in writing against COMdata GmbH, the customer is credited with the value at the expense and risk of the customer, based on the so-called time value calculation method (gross redemption price x [(average Period of use – weighted use of the customer or third parties) ÷ average useful life]). If the customer also claims damages, this is limited to the customer’s negative interest. The provisions of section 8 of these Conditions shall also apply.
(C) The guarantee period for new goods shall be 12 months from the date of the invoice issued by COMdata GmbH. The warranty for used goods / refurbished is 6 months. The expiration of the limitation period is not hindered by negotiations on the warranty, if the customer did not notify COMdata GmbH in writing in advance. Defects can only be claimed in writing immediately, within a maximum of one week after delivery and prior to the use of the goods and by means of an immediate inspection by COMdata GmbH. This also applies in the event that the goods are not delivered directly to the customer, but to a third party designated by the customer or the customer forwards the goods on his part. Defects that can not be ascertained during the examination are to be claimed immediately after discovery. Notwithstanding the notification of defect, the goods shall be accepted and stored properly. Warranty claims due to defects that are not properly identified are excluded. This also applies to notification of defects after expiry of the warranty period.
(D) the entrepreneur’s backlash against COMdata GmbH due to expenses for warranties arising from the purchase of a consumer goods are excluded if these have not been carried out to meet a legally binding demand of the consumer. The claims for recourse shall become statute barred two years after the date of the invoice issued by COMdata GmbH according to section 7 letter c of these conditions.
(E) In the case of damage to transport, immediate damage must be caused by the railway, post office, freight forwarder, parcel services, etc. prior to the acceptance and discharge of the goods, and a written certificate must be obtained from the receiving agency. The customer is responsible for observing exclusion periods. According to the General German Forwarding Conditions. The Customer shall be responsible for safeguarding any rights of recourse against third parties.
(F) The diligence measure to be observed when delivering goods from COMdata GmbH is that of an entrepreneur. This shall also apply in the cases in which the goods are delivered under private labels of COMdata GmbH.
(G) The customer is responsible for proof of a defect and its existence at the time of transfer of risk. If a warranty is given, the customer is obliged to attempt to enforce the claims against the manufacturer seriously out of court before an assertion against COMdata GmbH if the manufacturer is domiciled or has a branch office in Germany and COMdata GmbH is responsible for this purpose Provides all necessary information to the customer and assigns possible own claims to the customer against the manufacturer at the request of the customer.
(H) To the extent that a guarantee is provided by COMdata GmbH, this shall only apply to the end user. The customer supports COMdata GmbH as far as possible in complying with the guarantee promise.
(I) The warranty for radio and broadcasting equipment intended exclusively for operation or export to non-EU countries and supplied by COMdata GmbH to the customer under the condition of export from the EU can only be guaranteed , Insofar as the assertion of warranty claims and the necessary proof of the defect by the customer against COMdata GmbH, taking into account the Ordinance on the Conformity Assessment, Labeling, Authorization, Marketing and Operation of Radio Systems not intended for connection to a public telecommunications network (Telecommunications licensing regulation of 20 August 1997 / Federal Law Gazette I page 2117) and of §§ 60 and 65 TKG.
(J) If the object of the order is not collected within four weeks after pick-up request, COMdata GmbH can calculate an appropriate storage fee after the expiry of this period. If the collection is not carried out within three months at the latest, the obligation for further storage and any liability for slightly negligently caused damage or loss of the object shall be omitted. After the expiry of this three-month period, COMdata GmbH shall be entitled to dispose of the object of the contract free of charge to cover its claims. The customer must be reimbursed for any additional revenue.
(K) The customer undertakes to operate only in an appropriate manner for the goods advertised by COMdata GmbH. The customer is aware of the fact that inaccurate proprietary advertising can lead to warranty claims. The customer undertakes to release COMdata GmbH from the consequences of such advertising and to compensate for any damage to COMdata GmbH resulting from the breach of this obligation.
(A) The liability of COMdata GmbH, its legal representatives and vicarious agents is excluded, unless intentional or grossly negligent actions are alleged. In the event of negligent breach of contractual obligations, the damages shall be limited to a contract-typical damage foreseeable for COMdata GmbH.
(B) The liability exclusion does not apply to personal injury or damage to property according to the Product Liability Act, insofar as these damages have been caused by / or by privately used goods. In this case, the amount of the compensation shall be limited to the amount of the product liability insurance concluded by COMdata GmbH, in the policy of which the customer is granted access upon request.
9. Returns / Returns
(A) The goods supplied by COMdata GmbH shall be withdrawn by COMdata GmbH only with the prior written consent. The goods must be in perfect condition and be original and unpacked (complete, undamaged original packaging, accessories, operating instructions, complete packaging material, etc.).
(B) The returned goods shall be credited minus 3% (at least EUR 15.00) for processing and storage handling costs. Special orders or custom-made products are in principle excluded from the possibility of return. All returns to COMdata GmbH, which are made after approval by COMdata GmbH, are at the risk and expense of the sender. This also applies to the accidental loss of the goods. COMdata GmbH shall be free to pay the consignments of all transport and transport insurance costs as well as other incidental costs (eg delivery charges). Returns which are not deliveries free or even cash on delivery are not accepted.
10. Compensation for non-acceptance
(A) If the customer does not accept the goods contrary to the contract, he is liable to COMdata GmbH for the damage incurred. This shall be agreed at a rate of 15% of the net turnover amount plus VAT, subject to the proving of a lesser loss. COMdata GmbH has the right to assert a higher damage in case of proof.
(B) The customer shall bear the costs of transporting the goods back and forth.
11. Industrial property rights
(A) Delivered goods may not be sold without the trademarks affixed by COMdata GmbH or the subcontractors of COMdata GmbH. Bundles, regardless of whether they are software or hardware, must not be separated and the respective goods sold separately. Serial numbers may not be removed or rendered unrecognizable.
(B) Otherwise, the customer is prohibited from using any of the trademarks of COMdata GmbH, in particular for advertising purposes. Clichés of COMdata GmbH remain the property of COMdata GmbH even after full payment.
(C) COMdata GmbH is only liable in the case of infringement of industrial property rights by third parties, insofar as this was known to COMdata GmbH or should have known that industrial property rights of third parties are infringed and the customer is legally enforced in this respect. Liability shall be limited to the amount of the invoice of the delivered and the infringing goods.
The data of the customer are stored according to §§ 28, 34 of the German Data Protection Act (EDDS).
13. Telefaxing / e-mailing
COMdata GmbH uses the form of telefax and e-mailings to inform your customers about new products and offers. The customer has the opportunity at any time to object to this form of information provision.
14. Miscellaneous / Place of performance and jurisdiction / Severability clause
(A) Should one of the provisions of these terms be or become invalid, this shall not affect the validity of the remaining provisions. The contracting parties undertake to replace any invalid provision with an effective one that is as close as possible to the purpose of the invalid provision.
(B) Side agreements and deviating agreements require the written confirmation by COMdata GmbH to be legally effective. This also applies to the cancellation of the written form.
(C) For all legal disputes with the customer resulting from the contractual relationship and the formation and effectiveness of this relationship, the court of jurisdiction shall be Hanover, domicile of COMdata GmbH, insofar as statutory provisions do not prevail. COMdata GmbH is entitled to sue the customer at its registered office. The place of performance for all obligations arising from the contractual relationship with the customer is Hanover. Only German law applies, with the exception of the Vienna UN Convention of 11 April 1980.
COMdata GmbH, Golternstr.18 30455 Hannover