I. General conditions
1. The terms of delivery of the company ENO-Telecom GmbH (hereinafter referred to as the supplier) shall exclusively apply.
All deliveries, services and offers of the supplier shall be made exclusively subject to the conditions below, which shall be considered as acknowledged on reception of the order confirmation by the customer at the latest.
Opposing conditions or conditions of the customer that deviate from the terms of delivery of the supplier shall not be recognised by the latter, unless the supplier would have expressly agreed to their validity in writing.
The supplier's terms of sale shall also apply if the supplier makes the delivery to the customer unconditionally with the knowledge of opposing condition or conditions of the customer that deviate from the terms of delivery of the supplier.
All agreements made between the supplier and the customer for the purpose of execution of this agreement must be set down in writing in this agreement.
The supplier's terms of delivery shall also apply to future business with the customer as part of the current business relationship.
2. Insofar as the term "customer" is used in these general terms of delivery, this implies the supplier's immediate contractual partner.
The term "final customer" means the customer's contractual partner.
Insofar as the term "cooperation partners" is employed, these involve contractual partners who work together with the supplier within the context of permanent debt relationships.
3. The supplier shall deliver to the customer in individual agreements.
In addition, permanent debt relationships with cooperation partners exist with the relationships with cooperation partners being governed in a separate cooperation agreement.
These general terms of delivery expressly do not govern the legal relationships with cooperation partners.
4. These general terms of delivery only concern the trade with telecommunications articles.
Insofar as business with telephone cards is involved, individual agreements shall apply respectively.
5. The supplier shall unrestrictedly retain the right of ownership and copyright exploitation right of calculations, illustrations, drawings, programs saved on data carriers and other documents (hereinafter documents).
The customer may not make such documents and/or data carriers in addition to the data archived on the latter accessible to third parties.
This applies particularly for such documents that are described as confidential.
Before passing the latter on to third parties, the customer shall require the supplier's express agreement in writing.
The documents must be returned to the supplier immediately on request if the order is not placed.
6. The customer shall have the non-exclusive right of use of standard software with the agreed performance characteristics in unchanged form on the agreed equipment.
The customer may make two backup copies without express agreement.
7. The customer's assignments shall only be binding for the supplier after our written confirmation.
Likewise, all other agreements not made in writing (verbal, by telephone, telegraphic, by telex or by data line or by mailbox) shall require the written confirmation of the supplier.
8. Order acceptance and order confirmation shall be applicable respectively subject to the confirmation of cover of the supplier's goods credit insurer.
In the case of cancellation or reduction of the coverage by the goods credit insurer during the contract phase, the supplier shall reserve the right to withdraw from the contract.
9. Partial deliveries shall be allowed.
II. Offers, prices and terms of payment
1. The supplier's offers are non-binding, unless otherwise stated in the order confirmation.
Insofar as the order may be qualified as an offer according to § 145 of the Federal Law Gazette (BGB), the supplier may accept the latter within 2 weeks following reception.
Claims for damages owing to refusal of an order shall be excluded.
2. The customer shall work together with the supplier in the field of telecommunications services and the hardware and accessory trade.
It allows, insofar as the customer wishes, the supplier to extend the customer's scope of service towards the final customer by offering services in the mobile phone networks, in pages and in the fixed network, which the customer can pass on to the final customers.
Furthermore, the supplier offers the customer the purchase of telecommunications equipment and the latter's accessories.
3. The supplier shall work together with a pool of providers consisting of network operators, manufacturers and a service pool and therefore make available to the customer, as desired, the entire service in the field of telecommunications.
4. The supplier's prices are – unless otherwise agreed – ex warehouse Nordhorn plus carriage and packing, the respective statutory value added tax and other costs such as customs and insurance premiums, etc..
The deduction of discount requires a special written agreement.
6. Unless otherwise stated in the agreement, the supplier's invoices shall be due for payment net (without deduction) immediately.
If the customer falls in arrears with payment, the supplier shall have the right to demand interest on arrears totalling 8% per year over the respective basic interest rate according to § 247 BGB.
If the supplier is capable of proving greater damage due to delay, the supplier shall be entitled to make avail thereof.
The customer shall however be entitled to prove to the supplier that no damage or considerably lesser damage occurred to the latter as a result of the delayed payment. § 353 HGB shall remain unaffected.
7. An acceptance of cheques and bills of exchange, to which a right is reserved in any case, shall be granted only for the sake of payment and shall only be considered as payment after cashing.
Any discount interest and bank interest shall be at the customer's expense.
No liability shall be accepted for submission in good time and protestations.
Should payment of the remuneration have been agreed upon on the basis of the cheque-bill of exchange procedure, our reservation of property rights shall also extend to cashing by the customer of the bill of exchange accepted by the supplier and shall not cease by crediting of the cheque received by the supplier.
8. In case of delayed payment on the part of the customer, all claims, even insofar as the latter have been deferred and/or bills of exchange have been taken in, shall be due immediately.
If it follows from this or from other circumstances (non-payment of bills of exchange or cheques, cessation of payment, petition for bankruptcy, etc.) for the supplier that the creditworthiness of the customer is called into question, the supplier shall furthermore be entitled to make further deliveries or services conditional on advance payments or safety bonds.
If the customer fails to match payment with delivery in spite of being requested to do so, or is not prepared to make a safety bond, the supplier shall be entitled to refuse further fulfilment of the agreement, demand compensation for damages owing to non-fulfilment or withdraw from the agreements, insofar as deliveries or services have not yet been provided.
9. The customer shall only be entitled to offsetting rights if the latter's counterclaims are established with force of law, are undisputed or acknowledged by the supplier.
Furthermore, the customer shall be authorised to exercise a right of retention insofar as the customer's counterclaim concerns the same contractual relationship.
III. Reservation of property rights
1. Until complete fulfilment of all the claims arising from the entire business relationship, including subsidiary claims, claims for damages and cashing of cheques and bills of exchange, the goods shall remain the property of the supplier.
This also applies if individual claims on the part of the supplier are included in a current invoice and the balance is drawn and acknowledged.
2. Insofar as the goods subject to property rights are connected, mixed or processed to form a new mobile object, this shall be performed for the supplier, without any commitment on the latter's part as a result.
Owing to the connection, mixing or processing, the customer shall not acquire property rights to the new object according to §. 947 ff. BGB.
In case of connection, mixing or processing with objects not belonging to the supplier, the latter shall acquire joint ownership of the new object according to the ratio of the invoice value of the supplier's goods to the total value.
3. The customer shall only be entitled to resale or further processing with observation of the following conditions:
a) The goods subject to property rights may only be sold or processed by the customer in proper business and provided that the customer's pecuniary circumstances do not deteriorate in the long term.
aa) At this stage already, the customer shall cede the claims including all subsidiary rights from the resale of the goods subject to property rights – including any balance claims – to the supplier.
bb) If the goods have been connected, mixed or processed and the supplier has obtained joint ownership of these in the sum of the supplier's invoice value, the supplier shall be entitled to a sales price claim proportionally to the value of the supplier's rights to the goods.
cc) If the customer has sold the claim within the context of a genuine factoring, the customer shall cede the claim in its place against the factor to the supplier and shall pass on the customer's sales revenue proportionally to the value of the rights of the supplier to the goods to the supplier.
Insofar as the customer is overdue by more than 10 days in settling the invoice or the customer's pecuniary circumstances considerably worsen, an obligation exists for the customer to disclose the cession to the factor.
dd) The supplier shall hereby accept the stipulated cessions.
c) The order shall be empowered to collect the ceded claims, so long as the customer does not fall in arrears with the latter's payment obligations.
For this case, the supplier is hereby authorised by the customer to inform the final customer of the cession and collect the claims independently.
The customer shall undertake in this connection to provide the necessary information for assertion of the ceded claims and allow verification of this information.
In particular, the customer must issue the supplier on request with a precise listing of the claims to which the latter is entitled with the name and address of the acquirer, the total of the claims and the invoice date, etc.
5. The supplier shall undertake to release securities according to the customer's choice, insofar as the value of the security existing for the supplier exceeds all the customer's claims by more than 10%.
6. The customer shall not be entitled to pledge or cession by security of the goods subject to property rights or the ceded claims.
The supplier is to be informed immediately of pledging, confiscations or other disposals or interventions of third parties, with precise indication of the garnisher and third party, in order to allow the supplier to bring action in accordance with § 771 ZPO.
Insofar as the third party is not in a position to reimburse the judicial and extra-judicial costs of a lawsuit in accordance with § 771 ZPO, the customer shall be liable for the damages arising to the supplier.
7. If the supplier, in exercising the latter's reservation of property rights, recovers the delivered goods, a withdrawal from the agreement shall only exist if the supplier expressly declares the same.
The supplier shall be entitled to satisfy the latter's claims with the recovered goods subject to property rights through private sale.
8. The goods subject to property rights shall be held by the customer on the supplier's behalf free of charge.
The customer must ensure the goods subject to property rights against the usual risks such as for example fire, theft and water damage to the customary extent at the customer's own costs.
The customer shall hereby cede the latter's claims to insurance coverage to which the customer is entitled against insurance companies as a result of the aforementioned types of damage, or other claims against other persons obliged to pay compensation to the supplier in the sum of the invoice value of the goods.
The supplier shall accept the cession.
9. All claims and rights arising from the reservation of property rights to all the special forms established in these conditions shall remain intact until complete release from contingent liabilities (cheques/bills of exchange), entered into in the customer's interests.
The customer shall fundamentally be allowed in the case of paragraph 1 to conduct factoring for the customer's outstanding accounts.
The customer must however inform the supplier before entering into contingent liabilities.
IV. Delivery periods and delay
1. The prerequisite for the compliance with agreed delivery periods shall be fulfilment of the agreed terms of payment and other commitments by the customer, particularly including the timely reception of any documents to be supplied by the customer, and necessary approvals etc.
If these prerequisites are not fulfilled on time, the periods shall be extended accordingly; this shall not apply if the supplier is responsible for the delay.
2. The delivery dates mentioned in the order confirmation shall only be considered firm deadlines if they are expressly described as such, for example by the addition of "fix" or "at the latest".
3. Insofar as the failure to meet the deadlines can be imputed to an act of God, e.g. mobilisation, war, insurrection or similar events, e.g. strike, lockout, the deadlines shall be extended accordingly.
At the same time, the supplier shall be entitled, owing to the unfulfilled part, to withdraw completely or partially from the agreement.
4. If the supplier defaults, the customer shall be allowed – provided that the latter satisfies that damage has arisen to the customer as a result – to claim compensation for each complete week of delay in the sum of 0.5% respectively but not more than 5% of the price for the part of the deliveries that could not be adequately be used owing to the delay.
Insofar as the delayed delivery is not based on a deliberate breach of the agreement for which the supplier is responsible, the liability for compensation for damages on the part of the supplier shall be limited to the predictable damages that typically occur.
5. Claims for damages on the part of the customer owing to delayed delivery in addition to instead of the delivery which exceed the amount quoted in no. 4 shall, in all cases of delayed delivery, even after expiry of any deadline imposed on the supplier for delivery, be excluded.
This shall not apply, insofar as in cases of deliberate action, gross negligence or owing to injury to life, limb or health liability is compulsory; a modification in the burden of proof to the detriment of the customer is not connected herewith.
The customer shall only be entitled to withdraw from the agreement insofar as the supplier is responsible for the delay in the delivery.
6. On demand by the supplier, the customer shall undertake within an appropriate period to declare whether the customer wishes to withdraw from the agreement owing to the delay in the delivery and/or demand compensation for damages, or to insist on the delivery.
7. If the customer defaults in acceptance or culpably violates other duties to cooperate, the supplier shall be entitled to demand the compensation for damages to which the latter is entitled, including any additional expenditures.
Rights to further claims shall be retained in this respect.
8. Insofar as dispatch or delivery is delayed at the customer's request by more than one month after indication of readiness to dispatch, the supplier may charge the customer storage charges in the sum of 0.5% of the price of the objects of the deliveries, up to a maximum total of 5% however, for each month commenced.
The contractual parties shall retain the right to proof of higher or lower storage costs.
9. The right to proper and timely self delivery remains unaffected.
V. Transfer of risk and packaging
1. The risk shall be transferred to the customer as follows, subject to a different agreement, also in case of carriage free delivery:
a) in case of deliveries without commissioning or installation, as soon as the delivery has been handed over to the person performing transport or has left the supplier's warehouse.
At the customer's request and costs, deliveries will be insured by the supplier against the usual risks of transport.
b) in case of deliveries with commissioning or installation on the day of acceptance in the own company or, insofar as agreed, following perfect trial operation.
2. If dispatch, acceptance in the own company or the trial operation is delayed or impossible for reasons for which the customer is responsible, or if the customer defaults acceptance for other reasons, the risk shall be transferred to the customer.
3. Transport and all other packagings in accordance with the packaging regulation shall not be taken back by the supplier, pallets excluded.
The customer shall undertake to ensure disposal of the packagings at the customer's own costs.
VI. Acceptance of the deliveries
Deliveries must be accepted by the customer, even if they present considerable defects.
VII. Material defects
The supplier shall be liable for material defects as follows:
1. At the supplier's choice, parts or services that present a material defect within the limitation period – regardless of the duration of operation - must be repaired, redelivered, or produced again free of charge, insofar as the cause thereof already existed at the time of transfer of risk.
2. The contractual parties hereby agree – at variance with § 434 BGB – that the theoretical character of the object of the delivery on transfer of risk shall be fulfilled, unless otherwise individually agreed, if it is of average type and quality with regard to the serial or general production of the object of the delivery at the supplier's.
In case of lower quality, a defect shall not exist if use according to the agreement is not impaired. § 434 sect. 2 para. 2 BGB shall not be applied.
3. Claims for material defects shall fall under the statute of limitations within six months as and from the due date of the claim for defects, but 12 months at the most however as and from delivery of the goods.
The period shall also apply for consequential damage due to defects, insofar as no claims arising from unauthorised action can be asserted.
This shall not apply insofar as the law stipulates longer periods and in cases of injury to life, limb or health, in case of deliberate or grossly negligent violation of obligation on the part of the supplier and in case of deceitful concealment of a defect.
The limitation period in case of recourse concerning delivery according to §§ 478, 479 BGB shall remain unaffected; the period shall amount to five years, calculated as and from delivery of the defective goods.
4. a) The customer must complain to the supplier concerning material defects in writing.
If the customer is a merchant in the sense of the commercial code (HGB), the customer shall be subject to the obligation to complain according to § 377 HGB.
The decisive element for the condition of the goods as per contract shall the time of leaving the supplier's warehouse.
b) If the customer is not a merchant in the sense of the commercial code, the customer must inform the supplier of defects immediately in writing, however within one week at the latest after reception of the object of the delivery.
Defects that cannot be discovered within this period, even with thorough checking, must be reported to the supplier in writing immediately after discovery.
The decisive element for the condition of the goods as per contract shall the time of leaving the supplier's warehouse.
c) Insofar as obvious transport damage is involved, this must be commented on the carrier's delivery voucher before acceptance of the goods is acknowledged.
This comment on the delivery voucher must be confirmed in writing by the driver and the supplier must be informed immediately.
In case of transport damage, both the surrounding packaging in addition to the complete goods must be kept.
The goods from the transport damage must not be resold. Should a portion of the goods be missing on delivery or an accessory item not be present, this must likewise be reported without delay.
In this case, the original dispatch box must be kept.
Should the delivered goods be faulty already on delivery, this must be reported to the supplier without delay.
On return, the delivery voucher or a purchase invoice in addition to a precise description of the fault in addition to any return number given must be enclosed.
5. In case of claims, payments on the part of the customer may be withheld to an extent which is appropriately proportional to the material defects arising.
The customer may only withhold payments if a claim is asserted, the justification of which is no matter of doubt.
If the claim is made unjustly, the supplier shall be entitled to demand compensation from the customer for the expenditure arising to the customer.
6. The supplier must always be initially granted the opportunity of subsequent fulfilment within an appropriate period.
7. If subsequent fulfilment comes to nothing, the customer may – notwithstanding any claims for damages according to Art. X. – may withdraw from the agreement or reduce the payment.
8. Claims shall not exist in case of only insignificant deviation from the agreed characteristics, in case of only insignificant impairment of serviceability, in case of natural wear or damage occurring after transfer of risk owing to incorrect or negligent treatment, excessive stress or owing to specific external influences that are assumed according to the agreement and in case of irreproducible software errors.
If the customer or third parties conduct improper modifications or repairs, there shall likewise be no claims for defects for these and the resulting consequences.
9. Claims on the part of the customer owing to the expenditure required for subsequent fulfilment, in particular transport, road, labour and material costs shall be excluded, insofar as the expenditure increases since the object of the delivery has been subsequently transferred to a site other than that of the customer's branch, unless the transfer corresponds to its use as intended.
10. Legal recourse claims on the part of the customer against the supplier shall only exist insofar as the customer has not entered into any agreements with the latter's accepting representative over and beyond the statutory claims for defects.
Furthermore, number 8 shall apply accordingly for the extent of the customer's recourse claim against the supplier.
11. Art. X shall furthermore apply for claims for damages (miscellaneous claims for damages).
Further claims or claims other than those regulated in this Art. VII on the part of the customer against the supplier and the latter's agents of vicarious liability owing to a material defect shall be excluded.
VIII. Defects of title
The provisions of Art. VII shall apply accordingly if defects of title exist.
Further claims or claims on the part of the customer against the supplier and the latter's agents of vicarious liability owing to a defect of title shall be excluded.
IX. Impossibility and adaptation of the agreement
1. Insofar as the delivery proves impossible, the customer shall be entitled to demand compensation for damages, unless the supplier is not responsible for the impossibility.
Nevertheless, the claim for compensation for damages on the part of the customer shall be limited to 10% of the value of the part of the delivery that cannot be serviceably commissioned.
This limitation shall not apply, insofar as in cases of deliberate action, gross negligence or owing to injury to life, limb or health liability is compulsory;
a modification in the burden of proof to the detriment of the customer is not connected herewith.
The customer's right to withdraw from the agreement shall remain unaffected.
2. Should unforeseen events according to Art. IV no. 2 considerably modify the commercial significance or the contents of the delivery or considerably affect the business of the supplier, the agreement shall be adapted appropriately in good faith.
In case of commercial indefensibility of the adaptation of the agreement, the supplier shall be able to withdraw from the agreement.
If the supplier wishes to make avail of this right, the supplier must inform the customer immediately after realising the consequences of the event and indeed even if an extension of the delivery time had initially been agreed with the customer.
X. Miscellaneous claims for damages
1. Claims for damages and expenditure on the part of the customer (hereinafter: claims for damages), regardless of their legal basis, particularly owing to violation of obligations arising from the relationship of indebtedness and from unauthorised action shall be excluded.
2. This shall not apply in cases of compulsory liability on the part of the supplier, e.g. according to the product liability law, in cases of deliberate action, gross negligence, owing to injury to life, limb or health and owing to violation of essential contractual obligations.
If liability on the part of the supplier results and neither deliberate action nor gross negligence nor injury to life, limb or health exist, the claim in terms of the amount shall be limited to the product liability insurance of the supplier.
The supplier shall be prepared to allow the customer to consult the insurance certificate (policy) on request.
The supplier shall undertake to maintain the insurance until expiry of the guarantee period (Art. VII. fig. 2.).
A modification in the burden of proof to the detriment of the customer shall not be connected with the above rulings.
3. Insofar as the customer is entitled to claims for damages according to this Art. X, these shall fall under the statute of limitations on expiry of the limitation period applicable for claims for material defects according to Art. VII. Ziff. 3.
XI. Place of jurisdiction, applicable law, place of performance, partial voidness
1. The place of jurisdiction shall be, including for legal action for bills of exchange and cheques – insofar as the customer is a merchant entered as such in the commercial register, a legal person under public law or fund assets under public law, Nordhorn.
This shall also apply if the customer does not have a general place of jurisdiction in Germany, moves place of residence or usual place of abode out of German after signing the agreement or the customer's place of residence or usual place of abode is unknown at the time of instituting legal proceedings.
2. For all legal relationships with the customer the material law of the Federal Republic of Germany, without any cross reference of the latter in another legal order, shall exclusively apply.
The United Nations Treaty concerning the purchase of goods of 11.04.1980 (UN purchasing law/CISG) in its currently applicable version shall not apply.
3. The place of performance shall be Nordhorn, unless otherwise indicated to the contrary in the order confirmation.
4. The legal invalidity of individual provisions shall not affect the validity of the agreement as a whole, unless adherence to the agreement represents unreasonable hardship for any of the parties. All rights reserved for amendments and errors.
General terms of delivery of the company ENO telecom GmbH for products and services (status: April 2005)