General Terms and Conditions of Sale of INKUBIT Business Solutions GmbH (Online Shop)
§ 1 Scope of application
(1) These General Terms and Conditions of Sale (hereinafter: GTC) shall apply exclusively to all contracts concluded between INKUBIT BusinessSolutions GmbH (hereinafter: INKUBIT) and the Customer via the OnlineShop at https://shop.inkubit.com/; terms and conditions of the Customer that conflict with or deviate from these Terms and Conditions of Sale shall not be recognised unless express written consent is given to their validity. These General Terms and Conditions of Sale shall also apply if delivery is made to the Purchaser without reservation in the knowledge that the Purchaser's terms and conditions conflict with or deviate from these General Terms and Conditions of Sale. (2) All agreements made between INKUBIT and the Purchaser for the purpose of performing this contract shall be set out in writing in this contract. Orders placed orally or by telephone therefore require subsequent written confirmation by INKUBIT in order to be legally valid.(3) The version of the GTC valid at the time of conclusion of the contract shall apply.(4) These General Terms and Conditions of Sale shall only apply vis-à-vis entrepreneurs pursuant to § 310 para. 1 BGB (German Civil Code).(5) The contractual language is German. The German version of these Terms and Conditions of Sale shall be authoritative. Any English version is for information purposes only.
§ 2 Conclusion of contract
(1) The presentation and advertising of articles in the online shop of INKUBIT does not represent a binding offer to conclude a contract.(2) By sending an order via the online shop by clicking the button "Order with costs", the customer places a legally binding order. The customer is bound to the order for a period of two weeks after placing the order.(3) INKUBIT will confirm the receipt of the order via the online shop immediately by e-mail. Such an e-mail does not constitute a binding acceptance of the order unless, in addition to the confirmation of receipt, the acceptance is declared at the same time.(4) A contract shall only be concluded if INKUBIT accepts the order by means of a declaration of acceptance or by means of the delivery of the ordered items.(5) If the delivery of the ordered goods is not possible, for example because the corresponding goods cannot be delivered by our business partners, INKUBIT shall refrain from a declaration of acceptance. In this case, a contract is not concluded. We will inform you of this immediately and refund any consideration already received without delay.
§ 3 Prices - Terms of Payment
(1) All price quotations in the online shop are net prices plus the statutory value added tax and do not include any shipping costs. The shipping costs are indicated in the price details in the online shop. The price including VAT and any shipping costs is also displayed in the order mask before the customer sends the order.(2) Unless otherwise stated in the order confirmation, the net purchase price (without deduction) is due for payment within 14 days of the invoice date. (3) The customer may choose to transfer the purchase price and the shipping costs to the account stated in the online shop by IMMEDIATE TRANSFER or to pay by credit card.(4) The Customer shall only be entitled to rights of set-off, retention or reduction if his counterclaims have been legally established, are undisputed or have been recognised by INKUBIT. Furthermore, the Customer shall only be entitled to assert a right of retention if the counterclaim arises from the same contractual relationship. (5) The shipping costs are stated in the price information in the online shop. The price including VAT and applicable shipping costs is also displayed in the order mask before the customer sends the order.
§ 4 Terms of delivery - Delivery time
(1) The observance of deadlines for deliveries requires the timely receipt of all documents, provisions or other approvals and releases required for the execution of the order, in particular of plans, as well as the observance of the agreed terms of payment and other obligations by the customer. If these prerequisites are not fulfilled in time, the deadlines shall be extended appropriately; this shall not apply if INKUBIT is responsible for the delay. All delivery obligations are subject to INKUBIT's own timely delivery.(2) If non-compliance with the deadlines is due toa) force majeure, e.g. mobilisation, war, acts of terrorism, riots, pandemics or similar events (e.g. strike, lockout),b) force majeure, e.g. war, war, acts of terrorism, riots, pandemics or similar events (e.g. strike, lockout),c) force majeure. b) virus and other attacks by third parties on the IT system of INKUBIT, insofar as these occurred despite compliance with the usual care in protective measures,c) obstacles due to German, US and other applicable national, EU or international regulations of foreign trade law or due to other circumstances for which INKUBIT is not responsible, ord) untimely or improper delivery to INKUBIT, the deadlines shall be extended appropriately.(3) If INKUBIT is in default, the Customer may, if it can credibly prove that it has suffered damage as a result, claim compensation for each full week of default of 0.5 % each, but in total not more than 5 % of the price for that part of the deliveries which could not be used for the intended purpose due to the default.(4) The Purchaser's claims for damages due to delayed Supplies as well as claims for damages in lieu of performance exceeding the limits specified in No. 3 above are excluded in all cases of delayed Supplies, even upon expiry of a time set to INKUBIT to effect the Supplies. This shall not apply in cases of intent, gross negligence or injury to life, body or health. The Purchaser may withdraw from the contract within the scope of the statutory provisions only if INKUBIT is responsible for the delay in delivery. A change in the burden of proof to the disadvantage of the Purchaser is not connected with the above provisions.
§ 5 Transfer of risk
(1) The risk shall pass to the customer when the goods are made available for collection or download. Acceptance of the goods must take place after they have been made available. (2) At the time of transfer of risk, the goods have the agreed quality and are suitable for the contractually agreed use or, in the absence of an agreement, for normal use. It satisfies the criterion of practical suitability and has the quality customary for software of this type; however, it is not free of defects. A functional impairment of the programme resulting from hardware defects, environmental conditions, incorrect operation or similar is not a defect.
§ 6 Software/Data
Insofar as programmes are included in the scope of delivery, the respective licence conditions of the manufacturer belonging to the programme shall also apply to the customer, who hereby expressly accepts this. In case of doubt, the Purchaser shall only have a non-exclusive and non-transferable right of use, which may also be limited in time. Within networks, the licences shall only apply to the number of system workstations contractually agreed in advance; in the absence of an agreement to this effect, the licence shall only apply to one system workstation. In the event of a breach of these rights of use, the customer shall be liable for the amount of the customary remuneration.
§ 7 Microsoft Cloud Agreement (MCA)
In the event that INKUBIT provides Microsoft Online Services licenses to the Customer, acceptance of the Microsoft Cloud Agreement (MCA) and acceptance of the existing Customer Invitation URL is required.The MCA can be found at the following URL (German version):https://download.microsoft.com/download/2/C/8/2C8CAC17-FCE7-4F51-9556-4D77C7022DF5/MCA2017Agr_EMEA_EU-EFTA_GER_Sep20172_CR.pdf
§ 8 Liability for defects
(1) The Customer may not refuse acceptance of deliveries due to insignificant defects. Claims for defects on the part of the customer presuppose that the customer has properly fulfilled its obligations to examine the goods and to give notice of defects in accordance with § 377 of the German Commercial Code (HGB). (2) INKUBIT shall be liable for material defects as follows: All parts or services showing a material defect shall, at INKUBIT's discretion, be repaired, replaced or provided again free of charge, provided that the cause of the defect already existed at the time of the passing of risk.(3) Claims for subsequent performance shall become statute-barred 12 months after the passing of risk; the same shall apply to rescission and reduction. This period shall not apply if longer periods are prescribed by law according to §§ 438 para. 1 No. 2 (buildings and things used for a building), 479 para. 1 (right of recourse) or 634a para. 1 No. 2 (defects of a building) German Civil Code (BGB), in case of intent, fraudulent concealment of the defect or non-compliance with a quality guarantee. Claims for reimbursement of expenses of the buyer according to § 445a BGB (recourse of the seller) are also subject to a limitation period of 12 months from the passing of risk, provided that the last contract in the supply chain is not a purchase of consumer goods. The statutory provisions on suspension of expiry, suspension and recommencement of the periods shall remain unaffected. (4) Notification of defects by the customer must be made in writing without delay. In the event of a notice of defect, the customer is obliged to send the defective device or part at his own expense and risk to INKUBIT in the original packaging, together with a precise description of the defect, the model and serial number and a copy of the delivery note or invoice with which the goods were delivered. Replaced parts become the property of INKUBIT.(5) In case of claims for defects, payments of the customer may be retained to an extent that is in reasonable proportion to the material defects that have occurred. If the notice of defects is unjustified, INKUBIT is entitled to demand reimbursement of the expenses incurred from the Customer. (6) If the third supplementary performance fails, the Customer may withdraw from the contract or reduce the remuneration without prejudice to any claims for damages under No. 9.(7) Claims for defects shall not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability or damage occurring after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials or as a result of special external influences which are not assumed under the contract.(8) If operating or maintenance recommendations of INKUBIT are not followed, changes are made to the goods, parts are replaced or consumables are used that do not comply with the original specification, any warranty shall lapse. The warranty claim shall also lapse if the serial number, type designation or similar has been removed or made illegible or if device seals, warranty seals or similar have been damaged. This shall not apply in case of fraudulent concealment of the defect, in case of non-compliance with a guarantee of quality, in case of injury to life, body or health and in case of a wilful or grossly negligent breach of duty by INKUBIT. The above provisions do not imply a change in the burden of proof to the disadvantage of the Purchaser. Further claims or claims of the Customer other than those regulated in this § 8 due to a material defect are excluded. (10) The assignment of warranty claims to third parties is excluded. If the Customer sells the items delivered by INKUBIT to third parties, the Customer shall only be permitted to refer to INKUBIT for the associated statutory and/or contractual warranty claims with INKUBIT's consent.(11) In other cases, INKUBIT shall only be liable - insofar as otherwise regulated in the above provisions - in the event of a breach of a contractual obligation, the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the customer may regularly rely (so-called cardinal obligation), limited to the compensation of the foreseeable and typical damage. Liability for damages for loss of profit is excluded.
§ 9 Retention of title
(1) The items of the Supplies (Retained Goods) shall remain the property of INKUBIT until all claims it has against the Purchaser under the business relationship have been fulfilled. If the value of all security interests to which INKUBIT is entitled exceeds the amount of all secured claims by more than 20 %, INKUBIT shall release a corresponding part of the security interests at the request of the Purchaser; INKUBIT shall be entitled to choose between different security interests for release.(2) During the existence of the reservation of title, the customer is prohibited from pledging or transferring ownership by way of security and resale is only permitted to resellers in the ordinary course of business and only on condition that the reseller receives payment from its customer or makes the reservation that ownership is not transferred to the customer until the latter has fulfilled its payment obligations.(3) If the customer resells goods subject to retention of title, he hereby assigns his future claims from the resale against his customers with all ancillary rights including any balance claims to INKUBIT by way of security without the need for further declarations. If the goods subject to retention of title are resold together with other items without an individual price having been agreed for the goods subject to retention of title, the customer shall assign to INKUBIT that part of the total price claim which corresponds to the price of the goods subject to retention of title invoiced by INKUBIT. (4) Until revoked, the customer is authorised to collect assigned claims from the resale. In the event of good cause, in particular default of payment, cessation of payments, opening of insolvency proceedings, protest of a bill of exchange or justified indications of over-indebtedness or imminent insolvency of the Buyer,INKUBIT shall be entitled to revoke the Buyer's collection authorisation. In addition,INKUBIT may, after prior warning and observance of a reasonable period of time, disclose the assignment by way of security, realise the assigned claims and demand disclosure of the assignment by way of security by the Buyer to the Customer.(5) In the event of seizures, attachments or other dispositions or interventions by third parties, the Buyer shall notify INKUBIT immediately. If a justified interest is substantiated, the customer shall immediately provide INKUBIT with the information required to assert its rights against the customer and hand over the necessary documents.(6) In the event of breaches of duty by the customer, in particular in the event of default in payment, INKUBIT is entitled to withdraw from the contract in addition to taking back the goods after expiry of a reasonable period of grace set for the customer; the statutory provisions on the dispensability of setting a period of grace remain unaffected. The customer shall be obliged to surrender the goods. The taking back or assertion of the reservation of title or the seizure of the reserved goods by INKUBIT does not constitute a withdrawal from the contract, unless INKUBIT has expressly declared this.
§ 10 Other Claims for Damages - Contractual Adjustment
(1) If delivery is impossible, the customer is entitled to claim damages, unless INKUBIT is not responsible for the impossibility. However, the customer's claim for damages in case of impossibility is limited to 10 % of the value of those items that cannot be delivered due to the impossibility. This limitation shall not apply in cases of liability based on intent, gross negligence or injury to life, body or health; this does not imply a change in the burden of proof to the detriment of the Purchaser. The Purchaser's right to rescind the contract remains unaffected. (2) If events within the meaning of § 4 No. 2 a) to c) substantially change the economic importance or the contents of the Supplies or considerably affect INKUBIT's business, the contract shall be adapted taking into account the principles of reasonableness and good faith. If this is not economically justifiable, INKUBIT shall have the right to withdraw from the contract. The same applies if necessary export licences are not granted or cannot be used. If INKUBIT intends to make use of this right of withdrawal, INKUBIT shall inform the Customer thereof without undue delay after having realised the consequences of the event, even if an extension of the delivery period had initially been agreed with the Customer. (3) Unless otherwise provided for in these Terms and Conditions of Sale, claims for damages of the Customer, irrespective of the legal ground, in particular due to culpa in contrahendo, due to a breach of duties arising from the contractual obligation and due to tort, are excluded. This does not apply insofar as INKUBIT is liable according to the Product Liability Act, in the case of intent, gross negligence of owners, legal representatives or executives, in the case of fraudulent intent, in the case of non-compliance with an assumed guarantee or due to the culpable breach of an essential contractual obligation.(4) Compensation for damages in the case of breach of an essential contractual obligation is limited to the foreseeable damage typical for the contract insofar as no other of the aforementioned cases in no. 3 applies. (5) A change of the burden of proof to the disadvantage of the Purchaser is not connected with the above provisions. (6) Insofar as the liability for damages towards INKUBIT is excluded or limited, this shall also apply with regard to the personal liability for damages towards INKUBIT's employees, representatives and vicarious agents.
§ 11 Data protection
INKUBIT is entitled to process the data about the customer received with regard to the business relationship or in connection with it, irrespective of whether they originate from the customer himself or from third parties, within the meaning of the Federal Data Protection Act. This notice replaces the notification in accordance with the Federal Data Protection Act that personal data about the Customer will be stored and processed by means of EDP. Further information on the use of data can be found in our data protection declaration.
§ 12 Jurisdiction - Applicable law - Place of performance
(1) If the customer is a merchant, the place of jurisdiction shall be the registered office of INKUBIT; INKUBIT shall, however, also be entitled to sue the customer at its place of business.(2) The law of the Federal Republic of Germany shall apply. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.(3) Unless otherwise stated in the order confirmation, the place of performance shall be INKUBIT's place of business.
§ 13 Binding nature of the contract
The contract shall remain binding in its remaining parts even if individual provisions are legally ineffective. This shall not apply if adherence to the contract would represent an unreasonable hardship for one of the parties.